AJIT KUMAR DEHURY Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE order of conviction and sentence passed by the learned C.J.M. -cum -Asst. Sessions Judge, Keonjhar in S.T. Case No. 116 of 2001 convicting the appellant for commission of offence under Section 376(2)(f) of the I.P.C. and sentencing him to under go R.I. for ten years and to pay a fine of Rs.10,000/ -, in default to undergo R.I. for two years is assailed in this Crl.Appeal.

(2.) BEREFT of unnecessary details the facts in short are that on 18th May, 1998 at about 10.00 A.M. Kirtan Behari Behera, P.W.2,left his house for work. Thereafter Susila, P.W.1, his wife, went to the village pond to take bath and their minor children, namely, Mamata Behera, P.W.3 aged about 11 years and Ramachandra Behera, P.W.4 aged about 9 years remained alone in the house. At about 10.00 A.M., it was alleged that the appellant entered into the house of P.W.2 and taking advantage of the absence of parents in the house dragged Mamata, P.W.3, the minor daughter of Kirtan to the verandah, made her life on the ground, removed her panty and committed sexual intercourse with her in spite of her strong resistance. Ramachandra Behera, P.W.4, the younger brother of Mamata, tried to obstruct, but it was alleged that the appellant kicked him off. It was further alleged that the victim girl, P.W.3, being forcibly raped by the appellant lost her senses and after the alleged act the appellant fled away. After returning from the pond, Susila, P.W.1, sprinkled water on the face of her daughter P.W.3. Thereafter P.W.3 regained senses and narrated the occurrence to her mother. Susila also found the panty of Mamata, P.W.3, was stained with blood and semen. It was alleged that Susila took her daughter and her undergarments to the house of the appellant Ajit, but then Ajit denied the allegation and rather abused them and threatened to assault them. After Kirtan, P.W.2, returned from his work in the evening, Susila narrated all the facts to him and at the instance of Kirtan a Panchayat Meeting was convened. It was alleged that although the appellant Ajit, did not attend the said meeting, he was found guilty and it was decided that Mamata will be looked after by the family of Ajit as their daughter and an agreement would be executed to that effect. Another meeting was also convened on 26.5.1998, but the Villagers refused to interfere in the matter. Kirtan, P.W.2, thereafter lodged F.I.R. on 27.5.1998. During investigation the victim girl, Mamata, was sent for medical examination and her seized garments were also sent for chemical examination. After completion of investigation charge sheet was submitted against the appellant. The plea of the appellant as would be evident from his examination under Section 313 of the Cr.P.C. is completely denial of the occurrence. It was rather stated by him that he had been falsely implicated in the case.

(3.) MR . Parija, learned counsel appearing for the accused -appellant, forcefully submitted that it would be evident from the judgment itself that the Court below made of its mind to convict the accused as the allegation of rape on a minor child was there and was thus prejudiced. In short, according to Mr. Parija, learned Asst. Sessions Judge prejudged the case before analysing the evidence. Relying upon the evidence of P.W.9, the doctor, Mr. Parija submitted that as the medical evidence completely negatived the allegation of rape the Court below acted illegally in accepting the oral evidence which was not only absurd but was aimed at vilifying the accused. According to him this is a fit case where the order of conviction and sentence should be set aside and the appellant should be acquitted.