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2009 DIGILAW 149 (ORI)

MAHENDRA KISSAN v. STATE OF ORISSA

2009-02-19

L.MOHAPATRA, PRADIP MOHANTY

body2009
JUDGMENT : Pradip Mohanty, J. - This appeal is directed against the judgment dated 12.05.2006 passed by the learned Additional Sessions Judge, Sambalpur in S.T. No. 273/13 of 2000/2001 convicting the Appellants u/s 376(2)(g) of the Indian Penal Code (for short "IPC" and sentencing each of them to undergo imprisonment or life and pay a fine of Rs. 20,000/- (Rupees twenty thousand), in default to undergo further R.I. for a period of one year. 2. Case of the prosecution is that on 12.09.2000 at about 4.00 P.M. while the victim was returning home from the school, both the Appellants restrained her and committed forcible rape on her one after another. The father of the victim was not at home. He returned in the night. On the next day, he reported the matter to the O.I.C., Katarbag P.S. Investigation followed, on completion of which charge sheet was submitted against the Appellants for commission of offence u/s 376(2)(g) and Section 3(2)(v) of the S.C. & S.T.(P.A.) Act. 3. The defence plea i s one of complete denial. 4. In order to prove its case, prosecution examined sixteen witnesses. P. W. 12 is the victim, P.W.14 is the doctor who examined her, and P. Ws.15 & 16 are the investigating officers. Prosecution also proved nineteen documents. Defence did not choose to examine any witness. 5. The learned Additional Sessions Judge, who tried the case, by his judgment dated 12.05.2006 convicted the Appellants u/s 378(2)(g) IPC and sentenced them as stated earlier. He, however, acquitted them of the charge u/s 3(2)(v) of the S.C. & S.T. (P.A.) Act. 6. Learned Counsel for the Appellants assails the impugned judgment on the ground that there being no clear and cogent evidence, the trial court should have acquitted the Appellants, instead of convicting them u/s 376(2)(g) IPC. He also submitted that there is delay in lodging the F.I.R. and there is no proper explanation for the same. At the time of occurrence, both the Appellants were minor. There is absolutely no external injury on the person of the victim and as such it cannot be said that the victim was forcibly raped. 7. Mr. Behera, learned Addl. Government Advocate vehemently contends that the victim's statement is enough to sustain conviction of the Appellant. There is no reason to disbelieve the evidence of the victim. Her evidence is corroborated by the doctor (P.W.14). 7. Mr. Behera, learned Addl. Government Advocate vehemently contends that the victim's statement is enough to sustain conviction of the Appellant. There is no reason to disbelieve the evidence of the victim. Her evidence is corroborated by the doctor (P.W.14). Father of the victim was not present at the time of occurrence. He returned home in the night and on the next day lodged FIR. So, it cannot be said that delay in lodging the FIR has not been explained properly. According to Mr. Behera, the trial court has rightly convicted the Appellants and there is no reason to interfere with the impugned judgment. 8. Perused the LCR. P.W.12 is the victim. She stated that the incident took place on 12.09.2000. On that day, while she was returning from school after appearing the examination, on the way near a bushy jungle, suddenly both the Appellants appeared and caught hold of her. They laid her over the ground and torn her blouse. Appellant No. 1 pulled out her chadi (inner garment), whereas Appellant No. 2 gagged her mouth by putting his hands. Thereafter, Appellant No. 1 committed sexual intercourse with her for about 5 minutes. She further stated that while Appellant No. 1 was committing sexual intercourse, Appellant No. 2 was forcibly holding her arms and gagging her mouth. Thereafter, Appellant No. 1 took the role of Appellant No. 2 and the latter committed sexual intercourse on her for as about 5 minutes. She specifically stated that she tried to struggle and flee away from their clutches, but she could not as they overpowered her. She could not raise hullah due to gagging of her mouth. She further stated in her deposition that while she was returning home, she met a cattle grazer Dharmu Kisan and his wife and narrated the incident to them. After returning home at about 5.00 P.M., she reported the incident to her mother. At that time, her father was absent from home being away to Jharsuguda in connection with his official duty as Lineman. Her father returned home at about 11.00 P.M. whereafter her mother narrated the incident to him. Since it was late night, her father reported the matter to the police on the next day and the I.O. sent her for medical examination. She stated that her age was 15 years at the time of occurrence. Her father returned home at about 11.00 P.M. whereafter her mother narrated the incident to him. Since it was late night, her father reported the matter to the police on the next day and the I.O. sent her for medical examination. She stated that her age was 15 years at the time of occurrence. Nothing contrary has been elicited from her during cross-examination. The victim was examined by a doctor, but the said doctor has not been examined by the prosecution. Although the medical report was produced and marked as Ext.19 with objection, it has not been proved by the prosecution. In the said medical report, the doctor has mentioned about the external injury and rape committed on the victim. But since it has not been proved by the prosecution, no reliance can be placed upon Ext.19. P.W.4 and P.W.5 are the father and mother respectively of the victim. Both of them corroborate the statement of the victim (P.W.12) to the effect that immediately after she returned home, she disclosed the fact before the mother (P.W.5) since the father was not present, and when her father (P.W.4) came in the night, her mother reported the matter to him. On the next day, the victim and her father went to the police station and lodged the FIR. P.W.8 is the cattle grazer and P.W.10 is his wife. P.W.8 turned hostile and was cross-examined by the prosecution. During such cross-examination, he admitted that the victim disclosed before him about the rape committed by both the Appellants. In his cross-examination by the defence, he also admitted about the presence of his wife at that time. P.W.10 has stated that she saw the victim crying and both the Appellants fleeing away from the sport. On enquiry, the victim told that Appellant No. 1 had committed rape on her. P.W.9, the sister of the victim, corroborated the fact of disclosure made by the victim before her mother that she had been raped by the Appellants. After careful consideration of the evidence of the father and mother (P. Ws.4 and 5 respectively) of the victim, as well as the evidence of P. Ws.8, 9 and 10, we do not see any reason to disbelieve the evidence of the victim. 9. In the case of State of M.P. Vs. After careful consideration of the evidence of the father and mother (P. Ws.4 and 5 respectively) of the victim, as well as the evidence of P. Ws.8, 9 and 10, we do not see any reason to disbelieve the evidence of the victim. 9. In the case of State of M.P. Vs. Dayal Sahu it has been held that a conviction can be founded on the sole testimony of the prosecutrix unless there is compelling reason for seeking corroboration. By applying the ratio of the above decision, we are of the opinion that there is no reason to interfere with the order of conviction passed against the Appellants. So far as the sentence is concerned, taking into consideration the fact that the Appellants were minor at the time of occurrence, we are of the view that" imprisonment for ten years along with fine and the default sentence, as imposed by the trial court, will meet the ends of justice. 10. In the result, the conviction of the Appellants for commission of the offence u/s 376(2)(g) is maintained; but the sentence of life imprisonment, as passed by the trial court, is reduced to imprisonment for ten years. The fine imposed and the default sentence shall remain unaltered. The appeal stands disposed of accordingly.