NIRANJAN BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant herein calls in question the judgment of conviction and order of sentence passed against him in S.T. No.148/30 of 1990 on the file of the Addl. Sessions Judge, Bargarh. The learned Addl. Sessions Judge, Bargarh vide the impugned judgment dated 05.04.1991 held the appellant guilty of the charge under Sec. 376 of the Indian Penal Code (for short "I.P.C.") and sentenced him to undergo rigorous imprisonment for three years.

(2.) Prosecution case placed before the trial court is that on 14.05.1990 at noon time, the victim girl was playing cards with her sister and other girls in her house and by then, her parents were absent in the house. The appellant came to the house, knocked the front door and the victim opened the door. The appellant then entered inside the house, asked the girls whether they would permit him to play cards with them and then went towards the backyard of the house. The victim was then standing near the 'Dhaba' room of their house. Thereafter when the appellant again came towards their 'Dhenkisala', seeing him, the victim entered inside the 'Dhaba' room, but the appellant also entered therein, sat on the cot and asked the other girls there to remain engaged in playing cards but they being scared of him fled away and so also being afraid of the appellant, when the victim was trying to go outside, the appellant caught hold her right hand, dragged her inside and when she shouted, he gagged her mouth. The victim was partially paralysed from childhood, so she could not rescue herself out of the clutches of the appellant. Then, the appellant forcibly made her lie on the ground, opened her 'Chadi' and forcibly raped her. After some time, the mother and aunt of the victim came and she told them about the occurrence. After return of her father, she also told him about the occurrence and reported the matter at the Police Station, basing on which, a case was registered, investigation commenced and after completion of investigation, charge-sheet was submitted, cognizance was taken and the case was committed to the Court of Session and the trial court placing reliance on the materials on record, framed charge against the appellant under Sec. 376 of Penal Code to which the appellant pleaded not guilty. During the trial, the prosecution examined as many as twelve witnesses and exhibited certain documents, but the appellant has adduced no evidence in support of defence plea of false implication. The learned trial court on conclusion of the trial, placing reliance on the version of the witnesses, returned the impugned judgment of conviction and order of sentence, as stated earlier.

(3.) The learned counsel for the appellant submitted that in absence of any explanation for delay in lodging the F.I.R., the prosecution case should be thrown out. The P.Ws.2 and 4 are child witnesses and possibility of their being tutored cannot be ruled out, so they should not have been believed at all. For non-examination of the elder brother of P.W.2 who was present in the house, adverse inference should have been drawn against the prosecution. Moreover, the evidence of the victim is not supported by medical evidence, so also the evidence of other witnesses is full of material contradictions. In view of evidence of the mother of the victim, the finding of the trial court that the victim was aged below sixteen years, is palpably wrong. Finding of the learned trial court that the appellant took the plea of sexual intercourse with consent is not in consonance with the materials on record. The findings are based on inadmissible evidence and appreciation of evidence is perverse, for which the judgment should be set-aside.