JITU LOHAR AND ORS. Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellants Jitu Lohar @ Khoka and Anup Kumbhar alogwith co-accused Budhus Laguri faced trial in the Court of learned Addl. Sessions Judge, Fast Track Court, Rourkela in Sessions Trial No.92/39 of 2007 for offences punishable under sections 376(2)(g), 342/34, 307/34, 452/34 and 363/34 Indian Penal Code. The learned trial Court vide impugned judgment and order dated 14.3.2008 though acquitted co-accused Budhus Laguri of all the charges and also the appellants of the charge under section 342/34 IPC but found the appellants guilty under section 376 (2)(g) IPC so also under sections 307/34, 363/34 and 448/34 of IPC and accordingly convicted them of such offences and sentenced each of them to undergo R.I. for ten years and to pay a fine of Rs.20,000/- each, in default, to undergo further R.I. for three months for the offence under section 376 (2)(g) IPC, R.I. for seven years and to pay a fine of Rs.5000/- each, in default, to undergo further R.I. for two months for the offence under section 307/34 IPC, R.I. for two years and to pay a fine of Rs.2000/- each, in default, to undergo further R.I. for one month for the offence under section 363/34 IPC and R.I. for one year for the offence punishable under section 448/34 IPC. The sentences were directed to run concurrently.

(2.) The prosecution case as per the FIR lodged by one Surya Bahadur (P.W.7) is that he along with his wife, daughter (hereinafter the "victim") who was aged about 13 years and son Raja aged about 8 years and another daughter Anu were staying together in a place locally known as Mishra Khatal. The informant was working as a mason and on 19.4.2007 at about 8 O'' clock in the morning, he had been to his work and at that time his wife and children were at home. In the evening hours in between 6 to 7 O'clock, he returned back home and after taking his dinner went to sleep at around 8.30 p.m. The informant and his wife Mina slept in one room and their son Raja and the victim slept in the nearby room after watching T.V. The door of the room was open. During midnight at about 2 O'dock, the informant woke up from his sleep and found the gate was open and the victim was not there in her bed room. The informant called his wife and informed her about the absence of the victim in the house. The wife of the informant searched for the victim in the house of her mother which was situated nearby and there also she could not found the victim and accordingly she returned back home. Then the informant and his wife thinking that the victim might have gone to attend call of nature to the nearby lands, went in search of the victim and heard some sounds from the nearby canal and by focusing torch light, the informant noticed that two boys had pressed the victim inside the canal water; one was trying to force her face inside the water and another was pressing her legs. Hearing the shout of the informant, the two boys fled away from the spot. The informant rushed to the canal water and rescued the victim. He found the hands of the victim had been tied by means of a shirt towards the back and he untied her hands. The victim was sent back home with her mother. The informant chased the two boys but could not catch hold of them. After returning back home, the informant tried to ascertain about the incident from the victim. The victim narrated that in the night while she and her brother Raja after watching T.V. had slept in the room and the door was open, all on a sudden she realised that somebody was pressing her face and when she opened her eyes, she saw three unknown persons were carrying her. Those persons took her towards the nearby canal which was situated at a little distance from her house and thereafter removing her wearing apparels, they committed rape on her one after another. When the victim shouted, she was assaulted by those persons and thereafter they took a decision to finish the victim and accordingly took her towards the canal side and pressed her face in the canal water and at that time the informant reached there and she was rescued.

(3.) On the basis of such FIR lodged before the Inspector-in-charge, Mahlla Police Station, Rourkela, Rourkela Mahila P.S. Case No.16 of 2007 was registered on 20.4.2007 for the offences under sections 376(g)/307 IPC against unknown persons. The IIC of Rourkela Mahila P.S. directed P.W.10 Nalita Modi, Sub-Inspector of Police to investigate the case. During course of investigation, P.W.10 examined the informant, the victim and her mother Mina and recorded their statements. She sent requisition to the Scientific Officer, DFSL, Rourkela to visit the spot for the purpose of investigation. The victim was sent for medical examination on police requisition. After arrival of the Scientific Officer, DFSL, Rourkela, P.W.10 visited the spot with the victim along with the Scientific Officer and seized one pair of Hawai Chappal, one handkerchief, one blue colour panty (Chadi) near the canal located at Mishra Khattal, Sector-20, Rourkela under seizure list Ext. 12 . She also seized the wearing apparels of the victim being produced by her under seizure list Ext.7. She conducted raid at the houses of the accused persons but could not trace them out. She prepared the crime detail form vide Ext. 13 and also prepared spot map Ext. 14. She received the medical examination report of the victim and also seized her biological sample collected by the Medical Officer under seizure list Ext.5. On 27.4.2007 P.W.10 arrested all the accused persons and seized their wearing apparels under Exts.15, 16 and 17. She sent the accused persons for their medical examination and received the injury report of appellant No.2. On 28.4.2007, the appellants and the co-accused were forwarded to Court and a prayer was made by the I.O. before the learned S.D.J.M., Panposh for conducting the T.I. Parade and accordingly T.I. Parade was conducted on 3.5.2007 by P.W.11 inside the Special Jail, Rourkela. P.W.7 correctly identified both the appellants but failed to identify the co-accused Budhus Laguri. The I.O. also made query to the medical officer regarding the injury noticed on the person of appellant No.2 and obtained the reply. A prayer was made before the S.D.J.M., Panposh on 29.6.2007 to dispatch all the incriminating materials for chemical examination and accordingly those were forwarded to RFSL, Sambalpur. After completion of investigation, charge sheet was submitted against the appellants as well as co-accused Budhus Laguri.