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1997 DIGILAW 114 (ORI)

LAKI HARIJAN v. STATE OF ORISSA

1997-06-19

P.K.MISRA

body1997
P. K. MISRA, J. ( 1 ) THE petitioner has been convicted by the Asst. Sessions Judge, Jeypore, under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 2,000/-, in default, to undergo rigorous imprisonment for six months. The judgment of the trial Court having been confirmed in appeal by the Sessions Judge, the present revision has been filed. ( 2 ) AS per the prosecution case, on the date of incident i. e. 10-3-1991 when the victim, P. W. 1, was going to village Ekataguda at 11 a. m. , the accused came and caught hold of the victim and committed rape. Thereafter, the victim disclosed about the incident before P. W. 2, a co-villager and before P. W. 3, her mother. On the same day F. I. R. was lodged by the victim. The victim was medically examined, her wearing apparels were seized and sent for chemical examination. The accused was also medically examined and subsequently on completion of investigation charge-sheet was filed. ( 3 ) THE plea of the accused was one of denial. ( 4 ) THE trial Court convicted the accused on the basis of the evidence of P. W. 1, the victim, as corroborated by the post-occurrence witnesses, P. Ws. 2 and 3. The facts that the accused had sustained some injury and traces of semen were found from the wearing apparels were also considered. In appeal, the appellate Court reassessed the evidence and sustained the order of conviction and sentence. ( 5 ) IN this revision the learned counsel appearing on behalf of the petitioner submitted that in the absence of any injury on the victim, the Court below should have disbelieved the prosecution story. It is further submitted that since the victim was found to be more than 16 years old, even assuming that there was any incident of sexual intercourse, it should be taken that there was consent as indicated in the absence of any injury on the victim. ( 6 ) THE doctor has found that P. W. 1 was used to sexual intercourse, and as such absence of injury on the private part of the victim may not be very significant. The evidence of victim has been corroborated by the evidence of P. Ws. ( 6 ) THE doctor has found that P. W. 1 was used to sexual intercourse, and as such absence of injury on the private part of the victim may not be very significant. The evidence of victim has been corroborated by the evidence of P. Ws. 2 and 3, the two post-occurrence witnesses, as well as by the F. I. R. which was lodged without any delay. The presence of semen in the wearing apparels of the victim which was seized on the very date of incident also corroborated the version of the prosecutrix. Though no physical injury has been found on the victim, on the materials on record it is difficult to differ from the concurrent findings of both the Courts below who have analysed all the relevant materials on record and come to a conclusion about the guilt of the petitioner. The materials on record do not indicate consent on the part of the victim. In such view of the matter, I do not find anything to come to a different conclusion in exercise of revisional jurisdiction. ( 7 ) COMING to the question of sentence, I find that the petitioner is a member of scheduled caste and there was some negotiation between the accused and the victim which had failed prior to the incident. Having regard to the facts and circumstances of the case, I consider that interest of justice will be amply served if the substantive sentence is reduced to three years and the fine amount is reduced to Rs. 1,000/ -. Accordingly, while dismissing the revision, I reduce the substantive sentence to three years of rigorous imprisonment and fine to Rs. 1,000/-, default, to undergo further rigorous imprisonment for six months. The fine amount of Rs. 1,000/-, if realised, should be paid to the victim, P. W. 1, as compensation. ( 8 ) SUBJECT to the aforesaid modification in sentence the Criminal Revision is dismissed. Petition dismissed. .