KANHU CHARAN NAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) The judgment and order of conviction and sentence dated 21.9.2002 passed by the learned Additional Sessions Judge, Khurda in S.T. Case No. 7/46 of 2001, have been impugned herein in this appeal by the appellant from Jail. The learned Additional Sessions Judge, Khurda vide the impugned judgment and order held the appellant guilty of an offence under Section 376 read with Section 511 of the IPC and sentenced him to undergo imprisonment for seven years. Prosecution came to the trial Court with a case that on 2.11.2000 while the victim (P.W. 7) a girl child of 5 years old, and one YZ, another girl child of 5 years, were playing in village 'Danda' of their village, the appellant led both of them to the backside of village Panchayat Office, saying them to give them Green Blackgram Stick, (Biri Chhuin) there to eat. There he made the victim naked by removing the 'Chadi' worn by her, lifted her 'Frock' and made her sit on his lap and lifting the 'Lungi' worn by him, committed sexual intercourse on her. The victim and her playmate cried. Hearing their cry, a co-villager of the victim (P.W. 3), who had been to nearby tube-well to fetch water, arrived at the spot and witnessed the occurrence and shouted. The appellant left the spot immediately thereafter scaling the boundary wall of the Panchayat Office. P.W. 3 brought the victim and her playmate and left them near the house of the victim. The victim had disclosed the incident before her mother (P.W. 2), who in turn intimated the same to her (P.W. 2) husband (P.W. 1), who reported the matter to the police vide written report (Ext-1) at Bologarh P.S. The police had registered the case and investigated and found substance in the report Ext. 1 and filed the final form alleging the appellant to have committed an offence under Section 376(2)(f) (Name of the witnesses are withheld to protect the identity of the victim).

(2.) The trial Court, considering the aforesaid case of the prosecution, framed charged under Section 376(2)(f) again the appellant. The appellant faced the trial with the plea of denial and false implication at the instance of villagers as he belonged to Scheduled Caste. The trial Court basically relying on the version to the victim (P.W. 7) and her parents (P.Ws. 1 and 2), though did not accept the prosecution case of rape on a woman of less than 12 years, but returned the impugned judgment and order as stated earlier on a lesser charge that is attempt for the same, discarding the defence plea of false implication.

(3.) Assailing the judgment of conviction and sentence, it has been submitted by learned counsel appearing for the appellant that since in this case the victim was aged about 4 years at the time of occurrence and there was no independent corroboration to her evidence, much less any corroboration from medical evidence, the trial Court erred in recording a finding of guilty against the appellant under Section 376(2)(f) read with Section 511 of IPC. Otherwise also, the sentence imposed seems to be disproportionate and needs interference, has also been submitted by the learned counsel for the appellant.