STATE OF ORISSA Vs. KULAMANI PRADHAN

JUDGEMENT

(1.) THE appeal is directed against the judgment and order dated 14.9.1992 passed by the Sessions Judge, Keonjhar in Criminal Appeal No. 24 of 1989 setting aside the judgment and order dated 2.5.1989 passed by the C.J.M. -cum -Asst. Sessions Judge, Keonjhar in Sessions Trial No. 35/16 of 1987/88 wherein he convicted the accused (respondent) for the offence under Section 376 of I.P.C. and sentenced him thereunder to undergo R.I. for three years and to pay a fine of Rs. 5,000/ - and in default to undergo R.I. for six months more.

(2.) SUCCINCTLY stated, the prosecution case is that accused is a distant relative of the alleged victim (P.W.1) and as such he had visiting term with the family members of the victim. It is alleged that some time in the month of Jyestha of the year 1986, while the victim, a girl of less than 16 years was alone in her study room, accused came there and without her consent and against her will squeezed her breasts and forcibly lifted her to a room and committed sexual intercourse on her. After satisfying his lust, while he was sitting in another room, the victim questioned him as to why he defiled her, while answering to it he assured to marry her. In two other occasions also he committed sexual intercourse on her in her house and in consequence she conceived. When the gestation period was about 20 weeks and her pregnancy could be known by the family members, because of the shape and size of her belly, she disclosed the incident to her elder sister, who in turn informed it to her father, Ainthu (P.W.13). Hearing this, P.W.13, went to Keonjhar where the respondent was working as an Advocate -Clerk and charged him as to why he impregnated his daughter. The accused took the responsibility of terminating the pregnancy and in fact he himself, the victim (P.W.11) and her father went to some doctors to terminate the pregnancy, but as the pregnancy was at an advanced stage of about 20 weeks, they refused to terminate it. Ultimately, the accused asked P.W.13 to get the pregnancy terminated through a quack, but when he did not agree to it, he did not take any interest in the matter and asked P.W.13 to do whatever he liked. Thereafter, on 20.4.1987 P.W.13 lodged a written report before the O.I.C., Sadar P.S., Keonjhar (P.W.14). As the allegation contained in the F.I.R. revealed a cognizable case, P.W.14 registered the case and took up investigation. In course of investigation, he examined the witnesses, visited the spot, prepared spot map as per Ext. 5, sent the alleged victim to Padampur P.H.C. for medical examination, arrested the accused, sent him to the same P.H.C. and after his medical examination was over, forwarded him to Court and on conclusion of the investigation, finding a prima facie case against the accused, submitted Charge Sheet against him.

(3.) LEARNED Addl. Government Advocate submits that, as found from the evidence of P.W.13, father of the victim and P.W.11, the victim herself the age of the latter was less than 16 years at the time of occurrence. The horoscope, Ext. 4 also corroborates the oral testimony of P.Ws. 11 and 13, where it is mentioned that the date of birth of the victim was 8.2.1971. He further submits that as found from the evidence of the prosecutrix, since the accused (hereinafter referred as 'respondent') assured to marry her, she gave her consent for sexual intercourse. As such, even if it is admitted that the victim allowed the respondent to have sex with her, the consent was not voluntary. So the lower appellate Court should not have allowed the appeal. On the other hand, learned Counsel for the respondent supported the judgment of the lower appellate Court.