STATE OF ORISSA Vs. BAPUJI NAIK @ BAPUNI @ FATU

JUDGEMENT

(1.) The State in this appeal has called in question the order of acquittal passed by the learned Sessions Judge, Kandhamal-Boudh-Phulbani in S.T. No. 28 of 1995 acquitting the respondent of the charge under section 376/511, I.P.C. read with section 3(2)(v) of S.C. and S.T. (P.A) Act, 1989.

(2.) The case of the prosecution in short is that the respondent attempted to commit rape upon the victim (P.W.1) near Ladamaha field of village Tiangis (Mandasaru). The age of the victim girl is stated to be 12 years then. It is further stated that on 18.11.1994 around 3 P.M. the victim was grazing cattle over the land locally called LADAMAHA. At that time, in that lonely place, the respondent with an intention to rape the victim came, embressed and squeezed her breast where after he made her lie on the ground. Then he tore her inner garments. It is further stated that by application of force the respondent when was about to penetrate his penis into the vagina of the victim in order to commit forcible sexual intercourse, the victim being frightened started urinating with fecal matters coming out of her annus. At this point of time, one Upajini saw and shouted. So, the respondent left her. The victim then went to her house and reported the incident to her mother. Lastly a meeting was convened on 19.11.1994. Thereafter the written F.I.R. was lodged at the police station. Police having investigated the case submitted charge-sheet. This is how the respondent came to be tried.

(3.) The trial court on examination and evaluation of evidence has come to the conclusion that the prosecution has failed to establish its case beyond reasonable doubt. The evidence of P.W.1 (victim) has been discarded on the above score that victim P.W. 1 has not supported the F.I.R. version to the effect that P.W. 2 noticed the respondent to be lying over her and then he raised alarm, which led the respondent to lift P.W. 1. Next it has heavily weighed in the mind of the trial court to disbelieve the version of the P.W. 1 that after she urinated and eased in the place of occurrence without cleaning herself, she went to her house and met her mother. It has further been stated that version of P.W. 2 and 3 are contrary with the evidence of P.W. 1. Broadly on these grounds; the trial court has discarded the case of the prosecution. It may be stated here that informant in the case is the victim herself and she is aged about 12 years. She has come to the dock as P.W. 1. P.W. 2 is a relation of P.W. 1 who having seen the respondent by the side of P.W. 1 and also having seen P.W. 1 crying shouted. Mother of P.W. 1 has been examined as P.W. 3. P.W. 4 is a witness of that meeting. The doctors examining P.W.1 are P.W. 8 and 9. The investigating officer is P.W. 10. The respondent has examined himself in defence.