Research › Search › Judgment

Orissa High Court · body

2006 DIGILAW 716 (ORI)

State of Orissa v. Shyamdas Tudu

2006-10-18

A.K.PARICHHA

body2006
JUDGMENT A. K. PARICHHA, J. — This is an appeal by the State against the order of acquittal of the respondent recorded by learned Asst. Sessions Judge, Keonjhar in ST Case No.7/2 of 1989. 2. Prosecution case is that on 16.09.1988 when the victim girl (P.W.1) along with her sisters, grand-mother and neighbours was watching Biswakarma Puja at Keonjhar, the respondent asked her to accompany him to village Saras, which is situated at 3 K.Ms. away from Keonjhar town. The victim girl agreed to the proposal and started her journey to village-Saras with the re¬spondent on his bicycle. On the way, the respondent forcibly took the victim girl to the school building situated at the outskirt of village Saras and committed sexual intercourse with her twice against her will. Hearing the cry of the victim girl, some villa¬gers came to the school and saw the respondent fleeing away from the spot on a bicycle. The victim girl came to her house, narrat¬ed the incident to her family members and then lodged an F.I.R. in the Town Police Station, Keonjhar at about 11.00 P.M. Basing on the report, investigation was conducted and charge sheet was submitted under Section 376, I.P.C. against the respondent. The respondent took a plea of complete denial and false implication. During trial of the case, 12 witnesses were examined, 14 docu¬ments were exhibited and seven material objects were produced by the prosecution.The respondent-accused examined one defence witness only. On scrutiny of the evidence on record, learned trial Judge came to the conclusion that the alleged sexual inter¬course by the respondent was with the consent of the victim girl, who was 17 1/2 years old. He accordingly, acquitted the re¬spondent of the charge. The said order of acquittal is under challenge in this appeal. 3. Mr. Mishra, learned Standing Counsel appearing on behalf of the appellant-State, states that the statements of the victim girl and that of the post occurrence witnesses clearly establish that there was sexual intercourse committed by the respondent on the victim girl in the night of occurrence, learned trial Court was not justified in recording an order of acquittal, particularly when there was no clear evidence showing consent of the victim girl and that the victim girl had already attained majority. To support his contention, Mr. To support his contention, Mr. Mishra placed the con¬tents of the F.I.R., statements of the victim girl (P.W.1), doctor (P.W.11) and that of the sisters of the victim girl and the post occurrence witnesses. Mr. D. R. Sundararay, learned counsel appearing on behalf of the Senior Counsel Mr. S. D. Das, on the other hand,submits that the statement of the victim girl itself shows that she had con¬sent in the alleged sexual intercourse and the entry in the school admission register shows that she was already a major by the date of occurrence. According to him, the evidence on record clearly suggest consent on the part of the victim girl and so the conviction under Section 376, I.P.C. was not possible. 4. There is not much dispute about the sequence of events. It is clearly available in the F.I.R., statements of P.Ws.1, 2 and that of the respondent given before the Court under Section 313, Cr.P.C. that the respondent requested the victim girl to accompany him to village Saras and the victim girl came with him. Though the respondent denied to have sexual intercourse with the victim girl, yet the evidence of victim girl and that of post-occurrence witnesses (P.Ws. 3, 4, 8, 9) suggest that the respon¬dent and the victim girl had sexual intercourse inside the school building. The real controversial aspect of the case is whether the alleged sexual intercourse between the respondent and the victim girl in the school building was with consent of the victim girl and whether the victim girl was a major by the date of occurrence. 5. A close reading of the evidence of P.Ws.1 & 2 would show that the victim girl had come from her village to Keonjhar along with her sisters, grand-mother and neighbour to watch Biswakarma Puja, but in the evening on the suggestion of the respondent she left the other members of her group and accompa¬nied the respondent alone on the latter’s bicycle towards the village. It is also apparent from the statement of P.W.1 that she willingly sat on the bar of the cycle, which the respondent was riding, and they both came in such intimate position up to the school building, which is situated a few yards away from her house. It is also apparent from the statement of P.W.1 that she willingly sat on the bar of the cycle, which the respondent was riding, and they both came in such intimate position up to the school building, which is situated a few yards away from her house. No doubt, P.W.1 stated that she cried and shouted for help when the respondent forcibly dragged her to the school and com¬mitted sexual intercourse and that hearing her cry people from village came, but the post-occurrence witnesses (P.Ws.3 & 4) never stated that they heard any cry of the victim girl, rather they said that seeing the victim girl and the respondent moving together in a suspicious manner they raised doubt about their intention and kept watch over their movement and when both the victim girl and the respondent went inside the school, they went there after some time and seeing them, the respondent hurriedly put on his plant and fled away on his cycle. The above evidence clearly suggests that the victim girl had consent in the alleged incident and that seeing the villagers at the spot of occurrence she started making allegation against the respondent. Learned trial Judge, therefore, did not commit any mistake in drawing an inference that the victim girl had consent in the alleged sexual intercourse. 6. Regarding the age of the victim girl, P.W.1 stated that her father got her admitted in the school and according to the information given by her father her date of birth was recorded in the school admission register and that register would show the real age. She clearly stated that she has no horoscope. P.W.8, the father of the victim girl, stated that the victim girl was 15 years old whereas the victim girl herself stated that she was 17 years old at the time of incident. P.W.8 admitted that the victim girl was a student of Govt. Girls' High School, Keonjhar and that she had failed in Class VIII in 1987 and was again reading in the same class in 1988. He also stated that he got the victim girl admitted in the school and gave the information at the time of admission. The Asst. Teacher of the Govt. Girls' High School, Keonjhar (P.W.10) produced the school admission register and proved the entry relating to date of birth of the victim girl, Minati Mohanty. He also stated that he got the victim girl admitted in the school and gave the information at the time of admission. The Asst. Teacher of the Govt. Girls' High School, Keonjhar (P.W.10) produced the school admission register and proved the entry relating to date of birth of the victim girl, Minati Mohanty. According to this entry, the date of birth of P.W.1 is 18.3.1971. The evidence of above witnesses coupled with the entry in the school admission register they clearly establish that age of the victim girl by the date of occurrence was 17 1/2 years. That apart, ossification test of the victim was conducted by the doctor and according to the said test the victim girl was found to be 17 years old. The evidence of the doctor also reveals that the victim girl was habituated to sexual intercourse and had a stout physique. With such evidence on record, the trial Court was justified in its observation that the victim girl was no more a minor by the date of the occurrence. Once the victim girl was a major by the date of occurrence and she had consent in the alleged sexual intercourse, the action of the respondent would not amount to rape as contemplated under Section 375, I.P.C. and he would not be liable for the punishment provided for the said offence noted under Section 376, I.P.C. 7. Thus, on re-analysis of all the evidence on record, it is established that the victim girl was a major and she had consent in the sexual intercourse, which was allegedly performed by the respondent with her inside the school building on the date of occurrence. The order of acquittal recorded by the trial Court is, thus, in consonance with the evidence on record and cannot be disturbed. 8. In the result, the Government Appeal is found to be without any merit and is dismissed. Appeal dismissed.