IMPORTANT POINT
Engaging a new State Defence Counsel without providing him police papers and just asking him to inspect case record and to cross-examine victim and also taking consent from him to conclude cross-examination on that day itself, is a gross illegality.

JUDGMENT

S.K. Sahoo, J.—The appellant Khudia @ Khudiram Tudu faced trial in the Court of learned 3rd Additional Sessions Judge, Balasore in Sessions Trial Case No.22 of 2019 (191 of 2018) for offence punishable under section 376(2)(l) of the Indian Penal Code on the accusation that he being a relative of the son-in-law of the informant (P.W.4) committed rape on the victim (P.W.9), the disabled daughter of the informant.

The learned trial Court vide impugned judgment and order dated 30.08.2019 found the appellant guilty under section 376(2)(l) of the Indian Penal Code and sentenced him to undergo R.I. for a period of ten years and to pay a fine of Rs.5,000/- (rupees five thousand), in default, to undergo R.I. for a further period of one year.

2. The prosecution case, as per the written report submitted by Lepa Hansda (P.W.4) on 17.06.2018 at Jaleswar Police Station, in short, is that on 15.06.2018 in the evening hours, the informant after returning from his work, came to know that during his absence, the victim (P.W.9) who is his elder daughter had gone somewhere with her mobile phone and when he tried to search her in the locality, he could not trace her out in that night. On 17.06.2018 at about 2.00 p.m., his son-in-law Banamali Tudu (P.W.5) informed him that on 15.06.2018, the victim (P.W.9) came to his house and stayed in the night but on the next day i.e. on 16.06.2018, she had gone towards the countryside but did not return in the night. On 17.06.2018 morning, the villagers noticed the victim lying on the village road in an abnormal condition. The villagers informed the family members of victim who shifted her to Jaleswar hospital and found that the victim was deaf and dumb and was under treatment and thereafter the informant (P.W.4) came to know that the appellant had committed rape on the victim causing injuries on her person. Thereafter, P.W.4 lodged the first information report before the Inspector in-charge of Jaleswar police station on 17.06.2018.

On the basis of such written report, Bhaskar Chandra Patra (P.W.12), S.I. of Police, Jaleswar police station registered Jaleswar P.S. Case No.198 dated 17.06.2018 under section 376(2)(f)(l) of the Indian Penal Code and in absence of the Inspector in-charge of Jaleswar police station, he himself took up investigation of the case. He examined the informant and recorded his statement. Even though the I.O. requested one Priyanka Behera, a lady police officer to record the statement of the victim, but since the victim was a deaf and dumb girl and could not explain anything about the occurrence and her signs and gesture was not understandable, therefore, her statement under section 161 of Cr.P.C. could not be recorded. The father of the victim produced documents relating to her disability which were seized as per seizure list marked as Ext.2. The victim was sent for medical examination and P.W.10, the doctor of F.M.T. Department of Fakir Mohan Medical College and Hospital, Balasore examined her. Thereafter the I.O. prepared the spot map marked as Ext.7. The appellant was arrested on 18.06.2018 and he was also sent for medical examination. The wearing apparels of the victim were seized. Prayer was made to the learned J.M.F.C., Jaleswar for recording of the 164 Cr.P.C. statement of the victim but it could not be possible. After completion of investigation, charge sheet has been submitted against the appellant under sections 376(2)(f)(l)(n) of the I.P.C. on 28.09.2018

3. During course of trial, in order to prove its case, the prosecution examined fourteen witnesses.

P.W.1 Gourahari Hui is the scribe of the F.I.R. (Ext.1) and he stated that on 17.06.2018 in the early morning, he noticed the victim lying on the village road in an abnormal condition and her wearing apparels were covered with mud and he further stated that as per his advice, the victim was shifted to the hospital.

P.W.2 Maina Tudu is the younger sister of the victim. She stated that the victim had been to their