BIKAR @ BIKRTAN MALLIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant Bikar @ Bikrtan Mallik faced trial in the Court of the learned Adhoc Addl. Sessions Judge (F.T.C.-II), Balasore in S.T. Case No.16/85 of 2012 for offences punishable under sections 450 and 376(2)(f) of the Indian Penal Code for committing house trespass on 09.10.2011 at 9.00 a.m. by entering into the house of the informant Smt. X (P.W.5) situated in village Rehenga under Khantapada police station in the district of Balasore and committing rape on the daughter of the informant (hereafter 'the victim'), who was a girl below the age of twelve years. The appellant was found guilty under section 450 of the Indian Penal Code so also under section 376(2)(f)/511 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.1,000/- (rupees one thousand), in default, to undergo rigorous imprisonment for two months for the offence under section 376(2)(f) read with 511 of the Indian Penal Code and further to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/- (rupees one thousand), in default, to undergo rigorous imprisonment for one month for the offence under section 450 of the Indian Penal Code with a further direction that both the substantive sentences were to run concurrently.

(2.) The prosecution case, in short, as per the first information report lodged by Smt. X (P.W.5) before the Inspector in charge of Khantapada police station on 20.10.2011 is that she was a daily wage earner and belonged to scheduled caste. Her husband was staying outside in connection with his work. She was having three children and out of her daily earning, she was maintaining her children as well as her mother- in-law who was bed-ridden. On 09.10.2011 in the morning the informant had gone outside to work and her three children were in the house. On that day at about 9.00 a.m., taking advantage of the absence of the informant from the house, the appellant came to her house and sent the youngest daughter of the informant to a shop and carried the victim (P.W.7) who was the middle daughter of the informant to inside the house, opened her pant and attempted to commit rape on her. When the victim cried, the appellant threatened to kill her by strangulating her and then committed rape on the victim. At that point of time, one of the neighbour namely Sasmita Mallik (P.W.6) came to the house of the informant and found the appellant was putting on his clothes. When P.W.6 confronted the appellant as to why he had come inside the house of the informant and why the victim was crying, the appellant replied that he had done nothing and accordingly he left the house. The victim did not tell anything to P.W.6 out of fear. When the informant returned home and found the victim crying, she asked the victim about the cause of her weeping and limping. The victim disclosed everything before her mother. The informant sent message to her husband but he did not come and then the informant also fell sick for some time for which there was delay in lodging the first information report.

(3.) On the basis of the first information report, Khantapada P.S. Case No. 244 of 2011 was registered under section 376(2)(f) of the Indian Penal Code by Mr. Manoranjan Biswal (P.W.10), Inspector in charge of the police station who also took up investigation of the case. During course of investigation, P.W.10 examined the informant (P.W.5), the victim (P.W.7) and other witnesses and seized one black colour under garment of the victim under seizure list (Ext.3). He sent the victim for medical examination to Khantapada Hospital on police requisition, visited the spot which is the dwelling house of the informant and prepared spot map (Ext.7). After the medical examination of the victim, the I.O. seized one sealed bottle containing vaginal swab of the victim on production by the constable and prepared seizure list (Ext.8). On 02.04.2012 he received information that the appellant had surrendered in the Court and remanded to judicial custody. On 12.04.2012 he brought the appellant under police remand for medical examination and prepared the medical requisition in favour of the appellant but since before the doctor, the appellant refused to get himself medically examined, he was sent back to judicial custody. The I.O. sent the seized exhibits to R.F.S.L., Balasore through the Court of learned S.D.J.M., Balasore. He received the medical examination report and after completion of investigation, he submitted charge sheet against the appellant under section 376(2)(f) of the Indian Penal Code.