STATE OF ORISSA Vs. NITYANANDA DAS

JUDGEMENT

(1.) This appeal is preferred by the State of Orissa against the judgment dated 29.6.1988 passed by the learned Asst. Sessions Judge, Jagatsinghpur acquitting respondent No.1 Nityananda Das from a charge under Section 376 I.P.C. and respondent No.2 Nisakar Chandua from a charge under Section 376 read with Section 109 I.P.C. in Sessions Trial No.226 of 1987.

(2.) Prosecution case, in short, is that on 9.5.1986 at or about 7 P.M. P.W.7 Saraswati Karan (prosecutrix) lodged an oral information before the Officer-in-charge of Ersama Police Station which was reduced into writing by him and P.W.7 put her signature thereto. In the said oral complaint/information it was inter alia, alleged by P.W.7 that she with her two children left for village Ramtara to meet her husband Sudhansu Karana who was constructing a hut in that village. On the way to meet her husband, the prosecutrix Saraswati Karana arrived at Bagadi Ferry ghat in the evening and requested the boatman Batakrushna Behera (P.W.2) to take her across the river to the other side in his boat. As the weather was inclement in that evening P.W.2 did not agree to take her in the boat across the river and therefore P.W.2 requested P.W.7 to take shelter in his hut situated on the embankment of the river Bagadi.Thereafter, in the night P.W.7 Saraswati Karan with her two children took shelter in that hut. It is alleged that at about 9 P.M. the respondents being Nityananda Das and Nisakar Chandua entered inside the hut and requested P.W.7 to have sexual intercourse with them. However, P.W.7 declined to have any sex with them. At this, respondent No.1 Nityananda Das forcibly committed sexual intercourse on her against her will and without consent. It is further alleged in the said complaint that the other respondent Nisakar Chandua assisted respondent No.1 Nityananda Das in committing rape on the victim, Saraswati. It is also stated in the said complaint that upon hearing an alarm raised by her the boatman being P.W.2 Batakrushna Behera came to the hut and upon seeing him respondents-accused persons fled away from the spot. The victim, Saraswati then narrated the whole incident to Batakrushna Behera (P.W.2). Next day, Batakrushna Behera sent an information to the husband of Saraswati and he was called to the spot. He also called some persons of the locality and the matter was discussed there in the morning itself. In fact, P.W.1 being the husband of Saraswati arrived at the spot and learnt about the occurrence from Saraswati herself. The condition of son of the victim was bad and therefore P.W.1 went to village Ramatara for treatment of his son. Victim Saraswati thereafter came to the police station on the next day i.e. 9.5.1986 and lodged an oral information. The said oral information was reduced into writing by the O.I.C. of Erasama P.S. in which signature of P.W.7 was obtained and the same was registered as an F.I.R. Upon investigation, police submitted charge sheet under Section 376 and under Section 376/109, I.P.C. against the respondents. In course of investigation, the victim Saraswati was sent for medical examination and her wearing apparel were seized under a seizure list. In course of time, the case was committed to the Court of Session and thereafter, the case was transferred to the Court of Asst. Sessions Judge, Jagatsinghpur for trial and disposal in accordance with law.

(3.) On perusal of the materials on record learned trial Court framed charae under Section 376 I.P.C. against respondent No.1, Nityananda Das and under Section 376/109 I.P.C. against respondent No.2 Nisakar Chandua.