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2006 DIGILAW 578 (ORI)

Joga @ Jogeswar Sethi v. State of Orissa

2006-08-02

R.N.BISWAL

body2006
JUDGMENT R. N. BISWAL, J. : This appeal is preferred against the judgment and order dated 26.3.2001 passed by the Addl.Sessions Judge, Baripada in S.T. case No.7/78 of 2000 wherein she convict¬ed the accused-appellant for the offence under Section 376(2)(f) I.P.C. and sentenced him to undergo R.I. for four years and to pay a fine of Rs.1000/- in default to undergo R.I. for 60 days more. 2. Succinctly stated the prosecution case is that on 4.12.1999 at about 2 P.M. while the victim, a minor girl of about 10 years old, had been to a red gram field to mow grass, the accused-appellant aged about 60 years arrived there, laid her down on the ground and committed sexual-intercourse on her against her will and without her consent and in the process caused bleeding injuries on her private part and abrasions on both cheeks. When she returned home, her mother, seeing the blood stained wearing apparels of the alleged victim enquired from her about the cause of such bleeding to which she narrated the entire incident. Since the father of the victim had been to village Uania, as it appears, the mother did not prefer to disclose the incident to anybody nor did she lodge the F.I.R. When father of the victim returned home two days after, at 9 P.M., he heard the incident from his wife and since it was late at night, on the next date he convened a punch in the village which the accused-appellant did not attend despite calling of the gentry. So, on the next date i.e., on 8.12.99 he got the F.I.R. scribed through one Balaram and lodged it before the O.I.C. of Bangiripasi police station on the same date, who registered the case under Section 376(2)(f) I.P.C. and took up investigation. In course of investi¬gation he arrested the accused, forwarded him to Court and after completion of investigation submitted charge sheet for the of¬fence under Section 376(2)(f) of I.P.C. against the accused-appellant. The case having been committed to the Court of Ses¬sion, it was transferred to the learned Addl. Sessions Judge, Baripada, who heard and disposed it of as stated earlier. 3. To establish its case prosecution examined 11 witnesses in all as against none by the defence. The case having been committed to the Court of Ses¬sion, it was transferred to the learned Addl. Sessions Judge, Baripada, who heard and disposed it of as stated earlier. 3. To establish its case prosecution examined 11 witnesses in all as against none by the defence. After assessing the evidence on record the trial Court found the accused-appellant guilty of the offence under Section 376(2)(f) of I.P.C., convict¬ed him thereunder and considering his old age sentenced him to undergo the sentence as aforementioned. 4. Being aggrieved with this order, while in jail, the accused-appellant has preferred this present appeal. 5. Learned counsel for the accused-appellant submits that there was delay of four days in lodging the F.I.R. So, the trial Court ought not to have believed the prosecution story, particu¬larly when the delay has not been explained. As found from the evidence on record the father of the alleged victim had been to village Uania on the date of occurrence. He returned home on 6th December, 1999 at about 9 P.M. and on the next day convened a punch in connection with this matter, but the accused-appellant did not attend the said punch. So on the following day he lodged the F.I.R. Accordingly, the delay is satisfactorily explained. 6. Learned counsel for the appellant further submits that except the solitary testimony of P.W.1, the victim, there is no other material to show that in fact P.W.1 was raped by the ac¬cused-Appellant. She further submits that since P.W.1 was aged about 10 years, the trial Court ought not to have reposed much confidence on her evidence. As found from the record, the trial Court before recording evidence of the alleged victim as P.W.1 tested her power of understanding and being satisfied that she was able to understand things, recorded her evidence. Conviction can be made on the evidence of a solitary witness, provided it is cogent, clinching and beyond reproach. Even though P.W.1 was cross-examined at length nothing could be elicited to dub her as a false or tutored witness. Moreover, in the present case the evidence of P.W.1 has also been corroborated by P.W.8, the lady doctor, who deposed to have found injuries on the private part and cheeks of the alleged victim. Even though P.W.1 was cross-examined at length nothing could be elicited to dub her as a false or tutored witness. Moreover, in the present case the evidence of P.W.1 has also been corroborated by P.W.8, the lady doctor, who deposed to have found injuries on the private part and cheeks of the alleged victim. Learned counsel for the appellant further submits that there was animosity between the informant party and the accused-appellant and as such this case was foisted against the latter falsely. There is no reliable material to substantiate this stand. So I am not in one with the submission of learned counsel for the appellant. 7. The trial Court after assessing the evidence on record has rightly arrived at the conclusion that the accused-appellant is the author of the crime. The minimum sentence prescribed for the offence under Section 376(2)(f) I.P.C. is R.I. for 10 years, but since the accused-appellant is an old man, the trial Court took a lenient view and reduced the sentence. I do not find any reason to interfere with the order of conviction passed and sen¬tence imposed by the Court below on the accused appellant. Accordingly, the appeal stands dismissed. It is submitted by the learned counsel for the accused-appellant that the accused-appellant has been languishing in jail since 8.12.1999 and as such has already suffered the sentence. If he has already suffered the sentence including the default sen¬tence as imposed by the trial Court, he shall be released forth¬with. Appeal dismissed.