TARINI MAHANTA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE appellants herein had faced trial before the Court of the learned Special Judge -cum -Sessions Judge, Keonjhar in Special Case No. 12 of 1997 and all were found guilty of offence under Sections 376(2)(g) of the Indian Penal Code and sentenced to undergo R.I. for ten years each and to pay a fine of Rs. 1,000/ - each and in default to undergo R.I. for one month.

(2.) THE case of the prosecution in brief is that the victim -Bela Munda (P.W. 10) was working at a brick kiln and on 03.02.1997 while she was returning to her home in the evening hours, the appellants caught hold of her and took her to a nearby Neem tree, raped her one after another and threatened to kill her, if she disclosed the fact before anybody. The victim returned to her house at night and when her mother (P.W. 8) expressed her annoyance for the unusual delay for return back home, the victim narrated the incident to her mother. Thereafter, the mother of the victim (P.W. 8) informed her sister -in -law (P.W. 9) and on the next day proceeded towards the house of the prosecutrix's uncle (P.W. 7) and informed him about the occurrence. Thereafter, while they proceeds to the Police Station to lodge the report, the son of the village head, namely, Hira Mahanta told the prosecutrix, her mother and relatives that he would settle the matter at the village, for which they returned to the village. But since no settlement could be reached, the victim and her mother reported the matter at the local police station at about 4.15 P.M. on 4.2.1997.

(3.) MR . Mishra, the learned Additional Government Advocate for the State responded to the points raised on behalf of the appellants in the following manner by submitting that no objection was raised by the defence against Ext. 7 (report of the medical officer, who examined the prosecutrix) since the said Ext. 7 had been collected from the concerned doctor by the I.O. (P.W. 12) immediately after such report was prepared and handed over to him. He further submits that since the whereabouts of the doctor, who examined the prosecutrix, could not be ascertained by the prosecution at the time of trial, his report has been marked as Ext. 7. Under Section 32 of the Indian Evidence Act, a document could be relied upon, since the same was produced by the I.O. in course of the trial and had been received by him in due course of his investigation. He further submits that Ext. 7 would reveal that the victim had one bruise on the right forearm, scratch mark on the right forearm, bruise on the dorsal aspect of the left forearm and more importantly concluded that "the possibility of sexual intercourse cannot be excluded". The trial court came to a conclusion that it was true that the doctor had not been examined in course of the trial and the report of the doctor had been marked under Section 32(2) of the Indian Evidence Act and for such purpose, reliance was placed on the judgment of the Hon'ble Supreme Court in the case of Prithis Chand v. State of Himachal Pradesh, : A.I.R. 1989 (SC) 702, wherein the Hon'ble Supreme Court held that "Section 32 of the Evidence Act provides that when a statement, written or verbal is made by a person in the discharge of professional duty whose attendance cannot be procured without an amount of delay, the same is relevant and admissible in evidence". Therefore, the first contention raised on behalf of the appellant insofar as Ext. 7 and non -production of the concerned doctor are concerned, the same is in my considered view has been correctly repealed and I find no justification in this ground raised on behalf of the appellants.