JHADU GOUDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The Court of Session has held the case of the prosecution established that the appellant was one of the two persons the other being Kailash said to be absconding when the appellant was tried-who took Radha Bai (P.W.8), sitting at about midnight on the railway platform at the khariar Road railway station in the district of Kalahandi, inside a Hume pipe and committed rape on her against her will and will and. without her consent during the night of October 22/23, 1980. To bring home the charge to the appellant, whose case was one of denial and false implication, the prosecution had examined twelve witnesses. On a consideration of the evidence, the learned trial Judge found that the charge had been brought home to the appellant and accordingly the appellant was convicted under section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of five years. The appellant has assailed the Judgment and order of conviction as unfounded on the evidence.

(2.) Having heard the learned counsel for the appellant and the learned Standing Counsel, I find, for the reasons to follow, that the order of conviction cannot be sustained.

(3.) Radha Bai (P.W. 8), who was said to be the victim of sexual assault, was aged about 17 to 19 years according to the medical evidence at the time of occurrence. She was thus above the age of consent. P.W. 8 was dumb and unable to speak. She bad testified in the court by signs. Strangely, however, a part of the evidence had been recorded thus: My name is Radha Bai. I am D/O Dajaram Harijam. My age is unable to say years. My home is at Mauza Golni, Police station Jank, District- Kalahandi. This part of the evidence had been recorded after the oath was: administered to this witness. It has not been stated therein as to how and in what manner the oath was administered to her. A girl incapable to speak could not have testified as extracted above. Her evidence had been recorded thus: 1. She identified the ace used in the dock and indicated that two persons including the accused forcibly dragged by catching hold of her hands. She indicated by pointing out the accused to have opened her blouse and removed her wearing cloth. She further indicated that the accused made her to lie on the ground and gagged her mouth and in that process she sustained injury on her face. After she was made to lie the accused and another committed rape on her. She cried out. Hearing her cry three male persons came. X- Exami by the defence: 2. She denied the suggestion of the defence that the accused had not committed rape on her and she is deposing falsehood. Unfortunate as it might seem, the trial court did not take care to put any questions to this witness to get at the truth and closed her evidence after recording an answer in the negative to a suggestion made by the defence.