STATE OF ORISSA Vs. NAKULA BALIARSINGH AND ANR.

JUDGEMENT

(1.) THE State of Orissa has assailed the judgment and order dated 9.2.1993 passed by the Asst. Sessions Judge, Phulbani in S.T. Case No. 17 of 1992 (S.C. No. 46 of 1992 D.C.) acquitting the accused -Respondent of the offence under Sections 376 and 376/114 of I.P.C.

(2.) SUCCINCTLY stated, the case of the prosecution is that on 19.12.1991 at about 4 P.M., P.W.3, an unmarried girl of village Srirampur went to her sister's house in the Colony Sahi of her village to cook food for her sister and her family members as her sister was ill. After cooking the food, when she was returning home at about 6 P.M., on the way near a jackfruit tree, accused Nakula Baliarsingh forcibly dragged her towards the nearby Ashram School and when she resisted, he physically lifted her to a room of that school, threw her on the ground, lifted her clothes, removed her under garment and mounting over her committed sexual intercourse. Even though P.W.3 tried her best, she could not wriggle out of his clutches. It is the further case of the prosecution that hearing the shrieks of P.W.3, when P.W.2 and one Subash tried to enter inside the school premises, the co -accused, Kia Pradhan prevented them from entering into it. So, both P.W.2 and Subash waited near the School gate, till P.W.3 came there weeping with disheveled hairs and dress. On being questioned by P.W.2, she narrated the incident in detail. Then P.W.2 and Subash took P.W.3 to her house and disclosed the incident before her parents. On the next date, a village meeting was convened and the accused persons were asked to attend the meeting, but they became adamant and refused to attend it. So, on the advice of the Panch members, on the next day, P.W.1, the father of P.W.3, P.W.3 herself and some of their family members went to Kotgarh P.S., where P.W.1 orally reported the incident before the O.I.C. (P.W.4), who reduced the same into writing and treated it as F.I.R. P.W.4 read over and explained the contents of the F.I.R. to P.W.1, who finding the same to be correct put his signature thereon. As the allegation revealed a cognizable case, P.W.4 registered Kotgarh P.S. Case No. 56 of 1991 and took up investigation. In course of investigation, he examined the informant, the alleged victim and some other witnesses, visited the sport, prepared the spot map, sent the victim to Phulbani District Headquarters Hospital for medical examination and obtained the report in that regard. He also sent the accused Nakula Baliarsingh to Kotgarh Hospital for his medical examination, seized the wearing apparels of both accused Nakula Baliarsingh and the victim and prepared seizure list in respect thereof, sent the seized clothes, through S.D.J.M., Baliguda to State F.S.L., Rasulgarh for chemical analysis, arrested the accused persons, forwarded them to Court and after completion of investigation, finding a prima facie case, submitted charge sheet under Section 376 of I.P.C. against accused Nakula Baliarsingh and under Sections 376/114 of I.P.C. against the co -accused. The case having been committed to the Court of Session was transferred to the Court of Asst. Sessions Judge, Phulbani who framed charge under the aforesaid Sections and on denial of the charges by the accused persons, he conducted trial of the case.

(3.) IN order to establish its case, prosecution examined four witnesses in all; of whom P.W.1 is the father of alleged victim, P.W.2 is said to have heard the victim shrieking, P.W.3 is the victim herself and P.W.4 is the I.O. The accused persons did not prefer to examine any witness. After assessing the evidence on record, the trial Court acquitted both the accused persons holding that there was no reliable evidence that accused Nakula Baliarsingh committed rape on P.W.3 and that the co -accused abated the commission of rape and that if at all, there was sex between accused Nakula Baliarsingh and P.W.3, the possibility that it was with the consent of the later could not be ruled out.