STATE OF ORISSA Vs. RATAN KISSAN

JUDGEMENT

(1.) THE state in this appeal has called in question the order of acquittal passed by the learned Asst. Sessions Judge, Jharsuguda in S.T. Case No. 100/7 of 1997 acquitting the respondent no.1 of the charge under section 376 of IPC and the respondent no.2 for the offence under Section 216 of IPC. It may be stated that the respondent no.2 is the father of the respondent no. 1.

(2.) THE case of the prosecution is that the house of the victim and the respondents are situated nearby and the respondent no.1 is the nephew of victim's father (P.W.4). It is stated in about the year 1994 respondent no.1 and the victim became close, when the respondent no.1 started to share joke with the victim. It is further stated that the respondent no. 1 propose to marry the victim and to keep her as his wife and that was agreed to by the victim. On the last day on January 1995 in the dead of night, the respondent no.1 came to the room of victim and gave assurance to marry her and visited for having sexual intercourse and the victim agreed to the same. It is next alleged that the respondent no.1 then fulfilled his sexual lust. Since then the respondent no.1 used to come to the house at the dead of night and both use to continue with the sexual relationship. It is the further case that the respondent no. 1 had asked the victim not to disclose the fact before anybody and to maintain silence, which the victim carried out the same. Thereafter, the victim had no menstrual bleeding as she conceived. Respondent no. 1 having come to about it from the victim, denied for an abortion though the victim had suggested for it and he again gave an assurance to marry her as before. But thereafter stopped visiting to the house of the victim. Few days after both had been to Purunapali Hospital for abortion and they remained there for the night. When victim met her brother in the morning she returned with him to the village, respondent no. 1 also formulated them but on the way fled away. So the father of the victim called a meeting in the village, but the respondent no.l did not come and at that time the said victim was carrying five to six months old baby in her womb.

(3.) DURING trial prosecution examined 11 witnesses, whereas defence has examined none. More importantly as already stated the victim been examined as P.W.5. P.Ws. 4 and 7 are her father and mother respectively. The doctors have examined as P.Ws. 9 and 10, P.W. 1 is the Headmaster of the school where the victim was reading and so also P.W.3 and P.Ws. 2 and 6 are the co -villagers. The Investigating Officer has come to the dock as the P.W. 11. Also from the side of the prosecution, the relevant entry of the school admission register showing admission of the victim had been exhibited as Ext.l; whereas the F.I.R. is Ext.5 and the report of the doctors are Exts. 6/1 and 7. The trial court upon evaluation of evidence has not accepted the prosecution case that the victim P.W.5 at the relevant time was below 16 years of age. The trial court has come to the conclusion that the age of the P.W.5 then was more than 16 years.