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2016 DIGILAW 414 (ORI)

Motu @ Manoj Kumar Purty v. State of Orissa

2016-06-03

D.DASH

body2016
JUDGMENT : 1. The appellant from inside the jail has called in question the judgment of conviction recorded against him for commission of offence under Section 376 IPC and the order of sentence directing him to undergo imprisonment for a period of seven years in T.C. No. 499 of 2007 (G.R. No. 35 of 2007-C.T. No. 33 of 2007) by the learned Addl. Sessions Judge, Rairangpur. 2. Prosecution case is that on 25.1.2007 around 10 A.M., the victim (P.W.1) aged 10 years, the daughter of informant (P.W. 2) was tending cattle in a field with another minor girl (P.W.3) aged about 8 years. It is alleged that the appellant suddenly arrived there, caught hold of her and then tied her hands by means of his towel and made her lie on the ground. Thereafter, gagged her and sexually assaulted her by giving threat at the point of knife and asking her not to raise any hullah. After fulfilling the sexual lust, the appellant left the victim carrying his towel with him. The victim returned home and narrated the incident before her mother when her father, the informant was absent. Victim’s father when returned was told about the incident and thereafter, he lodged the FIR at the police station. The police having received the FIR, registered the case and began the investigation. In course of said investigation, the victim, her father and the other minor girl as also others were examined. The victim had also been sent for medical examination, so also being apprehended, the appellant was medically examined. Seizure of incriminating materials have also been made followed by preparation of seizure lists and finally the investigating officer laid the charge sheet against the appellant to face the trial for commission of offence under Sections 376/506 IPC. The case being committed to the Court of Sessions, the same ultimately came to be tried by the learned Addl. Sessions Judge, Rairangpur. 3. In course of trial, prosecution examined in total nine witnesses including the victim, her father, the minor girl-friend of the victim besides the doctor and other seizure witnesses as also the investigating officer. From the side of the prosecution, also the FIR has been proved and marked Ext. 1. The seizure lists have been proved. The spot map, medical report and the report of the chemical examiner have been admitted in evidence. 4. From the side of the prosecution, also the FIR has been proved and marked Ext. 1. The seizure lists have been proved. The spot map, medical report and the report of the chemical examiner have been admitted in evidence. 4. The trial court having duly formulated the point for determination in the case as regards the role said to have been played by the appellant therein, on evaluation of evidence has finally found the prosecution to have established its case against the appellant beyond reasonable doubt and accordingly has found the appellant to be guilty for commission of offence under Section 376 IPC. With the said finding, the appellant has been visited with the sentence as aforestated. 5. Learned counsel appointed as Amicus Curie submits that the trial court ought not to have believed the evidence of P.Ws. 1 and 3 as those contain basic infirmities so as to be relied upon. Thus he urges that the order of conviction and sentence are liable to be set aside. 6. Learned Addl. Standing Counsel submits that the trial court having gone for a detail analysis of evidence of P.Ws.1 and 3 has rightly convicted the appellant for the offence and there remains absolutely no scope for interference with the said finding. It is also placed that the sentence imposed is just and proper in view of the fact that it is a case of rape upon the minor girl aged about 10 years. 7. In order to appreciate the rival submission, I have first perused the evidence of P.W. 1. The trial court as is seen in view of the age of the victim has taken up the exercise of ascertainment of her competency and her understanding as to the implication of oath so as to be administered. Having arrived at a satisfaction on both the counts, evidence on oath has been recorded. It has been deposed by her that when she was there with P.W.3 near the river Baanda, the appellant came and tied her hands by towel (gamucha) and when she raised hullah, she was gagged. It has been next stated by her that the appellant made her lie on the ground, removed her undergarment and then committed sexual intercourse upon her; when P.W. 3 seeing the same left the place out of fear. It has been next stated by her that the appellant made her lie on the ground, removed her undergarment and then committed sexual intercourse upon her; when P.W. 3 seeing the same left the place out of fear. It has been also deposed further that the appellant at the point of knife had threatened to kill her in case of any disclosure. It is her evidence that after the incident she was untied whereafter the appellant left the place carrying gamucha with him. She has also stated as to have narrated the incident immediately to her mother returning home when her father was absent and father having came to know on his return lodged F.I.R. 8. A careful reading being given to the deposition of P.W. 1, no such material appears to have been brought out during the cross-examination so as to impeach her testimony as regards the incident in any manner. Her testimony thus appears to be above board. More particularly there remains absolutely no material to even suggest that she had even any remote reason to falsely implicate the appellant. So this Court finds the sole testimony of P.W.1 to be wholly reliable so as to form the basis of conviction for the offence under Section 376 IPC against the appellant. P.W. 3 the friend of P.W. 1 has also stated in the same vein as regards the sudden arrival of the appellant, tying of her hands by means of gamucha making her lie on the ground, gagging, and then having sexual intercourse. In spite of cross-examination, her testimony has not been shaken on any of the above factual aspect nor any material has been brought out so as to even give rise to any suspicion in the mind as regards the incident narrated that it was not actually seen by her i.e. for doubting her presence during then. In addition to the above, the father of the victim examined as P.W. 2 has clearly stated to have been told about the incident by his wife who heard about it from their daughter, the victim. Though there is little delay in lodging the FIR, the same has been well explained and no material is available on record to show that such explanation in any way is false. So this in the facts and circumstance and evidence is of no significance at all. Though there is little delay in lodging the FIR, the same has been well explained and no material is available on record to show that such explanation in any way is false. So this in the facts and circumstance and evidence is of no significance at all. The report of the chemical examiner further goes to show that there was human semen stains on the green chadi of the victim which has been seized under the seizure list Ext. 8 and so also on the green chadi of the appellant seized under Ext. 5. All these provide further corroboration to the evidence of P.W.1. In such state of affair of the evidence, the trial court having found the appellant guilty for the offence under Section 376 IPC, the same is not found liable to be interfered with. The sentence as imposed also appears to be just and proper in the proven facts and circumstances of the case. Therefore, the judgment of conviction and order of sentence as passed by the trial court, impugned in this appeal stand confirmed. 9. Resultantly, the appeal stands dismissed.