KAPILA KANDI Vs. STATE OF ORISSA

JUDGEMENT

(1.) This Criminal Appeal has been filed against the judgment and order dated 23.10.1987 passed by the learned Chief Judicial Magistrate -cum -Assistant Sessions Judge, Puri in S.T.No. 7/92 of 1987 convicting and sentencing the appellant for three years rigorous imprisonment in respect of the offence punishable under Section 451, IPC and seven years rigorous imprisonment in respect of offence punishable under Section 376 IPC with the direction that both the sentences are to run concurrently.

(2.) THE brief facts of the case are that the FIR was lodged by the complainant -alleged victim whose name is not being disclosed only describing in short as 'K', after nine days from the date of the incident, i.e. at 8.00 p.m. on 9.1.1987 at Kanas P.S., after scribing the oral FIR and obtaining her thumb impression.

(3.) FIRST of all the evidence of P.W. 1 Pahali Kandi and P.W.2 Dhobani Dei are liable to be examined. P.W.1 in his examination -in -chief has stated that on the date of occurrence at about 4.00 P.M. when he was returning from the work, he heard somebody crying inside the house of Bisi Kandi (P.W.4). When he went to his house, he saw the daughter -in -law of Bisi Kandi (P.W.4), namely 'K' was crying but he did not ask her anything and seeing her crying he left that place and none else was present at the time of such crying. In his cross -examination made on behalf of the prosecution, he has admitted that he had made statement before the I.O. (P.W.8) that while he went to the house of Bisi Kandi (P.W.4) hearing the cry, he saw the appellant running away from his house and he has also stated before the I.O. (P.W.8) that some broken bangles were lying near the door of the room where she was crying. But he denied that he told the I.O. (P.W.8) that the appellant first caught hold of 'K' in the cow -shed and when he escaped and entered into her bed room, the appellant followed her and committed rape on her in that bed room. He has also denied that he made any such statement before the I.O. (P.W.8) that Dhobani (P.W.2) was present there before he reached at the spot. P.W.2 Dhobani Dei made her statement before the Court that hearing the shouts of 'K' she came to the spot. At that time he was working at her bari. When she arrived at the spot she saw accused -appellant was going out of the house of 'K'. Then she went inside and asked 'K' about the occurrence. She told her that she was raped by the accused -appellant. She also showed her saya which was stained with semen. In cross -examination she stated that her house is 100 cubits away from the house of Bisi Kandi (P.W.4) and her bari is also 100 cubits away from her house. She further stated that when she entered into the house of 'K' none else except 'K' was present inside the house. But she had not said about the occurrence to anybody after hearing the same from 'K'. Further she has stated that she cannot say if there was any window in the room and also cannot say to which side was the door of that room and also cannot say what articles were kept in that room. She has further stated that she cannot describe the length and breadth of the bed room. A question was put before her that she had not stated before the I.O. (P.W.8) that while she was working at her bari she heard the shout of 'K' and came to the spot. She denied the same and said that she had said so before the I.O. (P.W.8). Further she has stated that during her presence at the spot no one came over there. Now in this regard statement of the I.O. (P.W.8), namely, Dambarudhar Srichandan is liable to be perused who stated that he had examined Dhobani Dei (P.W.2) on 10.1.1987 and she had not stated before him (P.W.8) that while she was working in her bari she heard the shout and came to the spot. Further he has stated that he examined Pahali Kandi (P.W. 1) and it is a fact that he has stated before him that while he came to the house of Bisi Kandi (P.W.4) after hearing the cry, he saw the accused -appellant running away from the house of Bisi Kandi (P.W.4). He has further stated that it is a fact that he has told before him that being asked, 'K' told him that accused -appellant first caught hold of her in the cow -shed and when she escaped and entered into her bed room, the accused -appellant followed her and committed rape on her in that bed room. He has further stated that P.W.1 has also stated before him that when he arrived, Dhobani (P.W.2) was already present there at the spot.