STATE OF ORISSA Vs. KHUDIRAM SAHU

JUDGEMENT

(1.) This appeal has been directed against the judgment and order of acquittal recorded by the Assistant Sessions Judge, Mayurbhanj, holding the respondent to be not guilty of the charge of rape under section 376 of the Indian Penal Code (for short, the Code) and acquitting him of the charge. Briefly stated the case of the prosecution presented at the trial was that after nightfall on July 29, 1979, the respondent, having left his wife at a friendTs house, came back home and after sending away his daughter Basanti for purchase of sugar, suggested to the victim girl (P.W. 5), who had been called to and kept in the house to give company to Basanti, to have sexual intercourse. As P.W. 5 resisted she was then lifted to an enclosed verandah of the house of the respondent. Her mouth was gagged and her hands and feet were tied and the respondent forcibly committed rape on her and thereafter washed the private part and the semen-stained clothes of the victim girl with hot water whereafter the victim girl left the place. No report was made by her to anyone and not even to her parents. On the day following, when the wife of the respondent charged that P.W. 5 had sexual intercourse with her husband, P.W. 5 gave out the story and lodged the first information report (Ext. 2). Investigation followed and on its completion, a charge-sheet was placed and the respondent was prosecuted. The plea of the respondent was one of denial and false implication owing to previous enmity with the father of P.W. 5.

(2.) To bring home the charge the prosecution had examined twelve witnesses. The respondent had not examined any witness in his defence. On a consideration of the evidence, the learned trial Judge did not accept the case of the prosecution that P.W. 5 was aged about thirteen years at the time of the alleged occurrence, held that she was above sixteen years and consequently was legally competent to be a consenting party and from the evidence of the victim girl coupled with the other circumstances appearing in the evidence found that the sexual intercourse of the respondent with the victim girl was with her consent. It was thus concluded that the prosecution had failed to establish the charge.

(3.) I have heard the learned counsel for both the sides. Shri Sahoo, the learned Standing Counsel has taken me through the relevant evidence. An attempt had been made by the prosecution to establish that P.W. 5 was aged about thirteen years at time of the occurrence. Mainly basing on Ext. 1, the relevant entry in the Admission Register of an Upper Primary School where P.W. 5 bad taken admission, but on a consideration of the evidence of P.W. 2, the mother of P.W. 5 and that of the Medical Officer (P.W. 10) who had testified that the age of P.W. 5 at the relevant time was fourteen to seventeen years, the trial court concluded that the victim girl was above the age of consent within the meaning of section 375 of the Code.