BABU Vs. STATE OF ORISSA

JUDGEMENT

(1.) Challenge in this appeal by the two appellants, Md. Babu(A1) and Md. Israel(A2), is to the impugned judgment of their conviction and order of sentence dated 23.12.2005 recorded by Additional Sessions Judge, district Jharsuguda, in S.T.No. 37 of 2005, State versus Md. Babu and another, relating to P.S. Jharsuguda, vide G.R.P.S. Case No. 45, by which learned trial Judge has convicted both the appellants U/Ss 394, 376(2)(g) I.P.C. and, for the former charge sentenced both of them to 3 years RI with fine of Rs.2000/- and in default of payment of fine to serve 6 months additional rigorous imprisonment. For the later offence, while appellant Md. Babu(A1)has been sentenced to imprisonment for life with fine of Rs.2000/-,(A2) has been sentenced to 10 years RI with the same amount of fine. In default both of them have been ordered to undergo 1 year additional rigorous imprisonment. Appellant no.1 has also been convicted u/s 377 I.P.C. and has been sentenced to serve 5 years RI with Rs.2000/- fine and in default in payment thereof to undergo 6 months further rigorous imprisonment.

(2.) At the very out set we record here that learned counsel for the appellant made a statement that so far as Md. Israel (A2) is concerned he has already served his sentence and has been released from jail and consequently the appeal preferred by Md.Israel (A2) has become infructuous. We, in such fact, dismissed the appeal of Md. Israel as infrutuous and have considered the appeal of Md. Babu(A1) only.

(3.) Eschewing not so relevant facts, discernible prosecution allegations against both the appellants, as was slated in the FIR Ext.10, stated during investigation and deposed in the trial, reveal that on 11.9.2004 victim informant prosecutrix/P.W.8, travelled by Alepee -Bokaro Express train from Raygada and got down at Jhasuguda railway station at 5 a.m. accompanied by Akhaya Kumar Khora/P.W.12, who is the younger brother of her would be husband/ beloved. From the railway station they boarded in the rickshaw of Shyam Kanta/P.W.13, to come to bus stand to catch a bus for Sundargarh. En-route, when their rickshaw arrived near the main road, two persons, one tall and one short, later on identified as (A1) & (A2),appellants herein, surrounded the rickshaw from both the sides. (A1) carrying a Bhujali, and (A2) wielding a pistol forced the rickshaw puller/P.W.13 to take rickshaw to a nearby dark area adjacent to the two dilapidated abandoned houses and a butcher's shop, and after reaching there both of them robbed PW12 of Rs.500/-snatching it from his pocket. Thereafter (A1) asked victim/ informant/P.W.8 to get down from the rickshaw and on her resistance pulled her down, carried her to the abandoned house and there filthily abused her and forcibly undressed her below her waist by removing her attires inspite of the fact that victim begged him to spare her as she was in her menstrual cycle and so no sexual act be committed with her. PW 12 also vainly beseeched to spare the victim informant seeing her in sanitary napkin but he was hit by pistol butt by (A2).Md.Babu (A1) thereafter committed unnatural sexual anal intercourse with the victim. Thereafter victim was brought to butcher's stall nearby where, in spite of her protest, (A1) forcibly raped her. Meanwhile dawn twilight and bustling of people started and therefore both the accused threatened the victim/PW8, PW12 and 13 to leave the place silently otherwise they would be annihilated and hurling such a life threat both the accused escaped from the incident scene. This humiliating incident was witnessed by rickshaw puller/PW13 & Akshaya/PW12.In the same rickshaw victim and PW12 then came to bus stand and from there went to the house of victim's friend Suman Kujur/PW18, where prosecutrix victim narrated to PW18 the ignominious incident and also telephonically informed her would be husband Hiroda Kumar Khora/PW9. Informant/victim/PW8 and PW12 then came to Sundargarh by bus where PW9 received them at the bus station and brought them to her house. Victim, thereafter went to doctor Karunakar Patel, Gynaecologist/PW16 who, after examining her gave her some medicines. Because of excessive pain victim was unable to move and therefore only in the evening she could manage to go to Sundargarh town police station , where she tried to get her FIR registered but was advised by D.S.P. Swain to approach Jharsuguda town police station and consequently victim came to Jharsuguda town police station accompanied by a police constable. From said police station she was directed to G.R. P.S. as the crime was committed within territorial jurisdiction of that police station where ultimately her scribed FIR, Ext.10, which contained her signature Ext. 10/1, was registered as crime no. 45, U/Ss 394/376(2)(g)/377/397, I.P.C. and 25/27 Arms Act, on the following day of the incident i.e., on 12.9.94 at 10.50p.m. Cloths worn by informant prosecutrix including her napkin are material exhibits MO I to VI, which where seized by the police vide seizure list Ext.11 and victim's signature thereon is Ext. 11/1. Victim/ PW8 further proved signature of her beloved/PW9 and of her cousin brother Prabal Jyoti Minz as Exts.11/2 & 11/3.