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2003 DIGILAW 16 (ORI)

SHYAMA SUNDAR KABAT v. STATE

2003-01-09

L.MOHAPATRA

body2003
L. MOHAPATRA, J. ( 1 ) THE appellant having been convicted for commission of offence u/s. 376 of the Penal Code and sentenced to R. I. for seven years and pay fine of Rs. 1,000. 00 has preferred this appeal against the judgment and order of conviction and sentence dated 4-7-94 passed by learned Assistant Sessions Judge, Jeypore. ( 2 ) THE prosecution case is that in the morning of 29th of March, 1993 at about 6. 30 a. m. while the victim girl (P. W. 3) and her sister (P. W. 4) were going to the Village river for taking bath, the accused suddenly appeared and requested P. W. 3 for sexual favour. When P. W. 3. denied, she was dragged by the accused towards a bush where the accused laid her on the ground and committed rape on her. It is further alleged that the accused threatened the victim girl not to disclose the incident to anybody failing which she would be killed. It is also alleged that P. W. 4 sister of P. W. 3 (the victim girl) ran away from the spot towards her house. The victim girl after commission of the sexual assault took bath in the river and after returning to her house reported the incident to her mother and thereafter went to the house of the Sarpanch and reported the incident to P. Ws. 2, 6 and others who advised her to report in the Police Station. Accordingly, she lodged the FIR in the Police Station. ( 3 ) AFTER investigation charge-sheet was submitted for commission of offence u/s. 376 of the Penal Code. During trial the victim girl, her sister and 6 other witnesses were examined on behalf of the prosecution whereas defence did not examine any witness. The learned Assistant Sessions Judge, Jeypore accepted the evidence of the victim girl (P. W. 3) and on the basis of the statement of the victim girl convicted the appellant for commission of offence u/s. 376 of the Penal Code. ( 4 ) THOUGH no one appeared to argue on behalf of the appellant. I with the assistance of the learned Addl. Government Advocate have gone through the entire evidence on record as well as the findings of the learned Assistant Sessions Judge, Jeypore. ( 4 ) THOUGH no one appeared to argue on behalf of the appellant. I with the assistance of the learned Addl. Government Advocate have gone through the entire evidence on record as well as the findings of the learned Assistant Sessions Judge, Jeypore. In the FIR dated 29-3-93, it is alleged by the victim girl that at about 6-30 a. m. on that day when she and her younger sister Manjula (P. W. 4) were going to the river for taking bath. The accused suddenly appeared and requested the victim girl for sexual favour. She also alleged that when she refused she was dragged by the accused by catching hold on her right hand and thereafter the accused laid her on the ground and committed rape on her. She has also alleged that her sister who had accompanied her ran away from the spot towards her house. It is also stated in the FIR that after the incident the victim girl cleaned her cloths in the river and after coming to Village reported the matter before the Sarpanch. During examination she deposed about the manner in which the offence was committed and I do not find any discrepancy between the statement made in the FIR and her deposition in the Court. In cross-examination, nothing has been brought out to disbelieve the said witness. In paragraph 4 of the cross-examination rather the victim girl has specifically stated that the accused dragged her by catching hold of her right hand and denied the suggestion that the accused had committed sexual intercourse with her consent. P. W. 4 who is the younger sister of the victim girl has also stated in her evidence that on the date of occurrence while she and P. W. 3 were going to take bath to Dhobatuta the accused suddenly came and forcibly dragged P. W. 3 towards the bush and out of fear she ran away towards her house. There is nothing in cross-examination to disbelieve the witness. P. W. 2 in his evidence has stated that on the date of occurrence at about 10. There is nothing in cross-examination to disbelieve the witness. P. W. 2 in his evidence has stated that on the date of occurrence at about 10. 00 a. m. while he was sitting on the verandah along with Padmanava Panda and Trailokya Pradhan the victim girl and her sister came and enquired about his father who was the Sarpanch he has also stated in his evidence that the victim girl told before him that the accused committed rape on her near a bush where after she was advised to submit a report before the Police. P. W. 6 Padmanabha Panda who was sitting along with P. W. 2. In his evidence has also stated that P. W. 3 told before him that accused committed rape on her. In view of such evidence available on record. I do not find any reason to disbelieve the statement of the victim girl corroborated partly by the statement of her younger sister P. W. 4 to the extent of appearance of the accused on the way and dragging of P. W. 3 to a nearby bush. It appears from the discussions made by the trial Court that much reliance was placed on the medical report Ext. 6 which indicates that at the time of examination of the victim girl no sign of sexual intercourse was found. The trial Court did not accept the contention on the ground that the victim girl being married, injuries may not be found on her private part even through sexual assault takes place. I fail to understand from which part of the evidence the trial Court came to a conclusion that the victim girl was a married lady. During examination in Court she has described herself as daughter of Late Kurpa and in the FIR also she has described herself as daughter of said Kurpa. The learned Addl. Government Advocate has also not been able to place any material on record to show that the victim girl was married. However, even though the reasons given by the learned Asst. Sessions Judge with regard to Ext. 5 are not acceptable. I find from the materials placed before the Court that after the occurrence the victim girl had gone to the river to take bath and cleaned the clothes. However, even though the reasons given by the learned Asst. Sessions Judge with regard to Ext. 5 are not acceptable. I find from the materials placed before the Court that after the occurrence the victim girl had gone to the river to take bath and cleaned the clothes. If this part of the evidence is accepted it is natural that no sign of sexual intercourse would be found by the doctor examining her and no stains would be found on the wearing apparels of the victim lady. Since I accept the statement of the victim girl to be true and trustworthy being supported partly by the evidence of P. W. 4. I have no reason to differ with the conclusion arrived by the trial Court that the appellant is guilty of commission of offence u/s. 376 of the Penal Code. Accordingly, I do not find any merit in the appeal and the same stands dismissed. Appeal dismissed.