S. C. MOHAPATRA, J.

( 1 ) THIS is an appeal by the convict from Jail. He has been convicted u/ss. 376 and 324, IPC and has been sentenced to undergo R. I. for seven years in respect of offence u/s. 376, IPC and one year in respect of offence u/s. 324, IPC. Both the sentences are directed to run concurrently. Another accused has been acquitted and no appeal has been preferred against acquittal.

( 2 ) P. W. 5 is wife of P. W. 4. Prosecution case is that on 29-5-1985, they returned from Phulbani in bus and got down at G. Udayagiri at about 8 or 9 p. m. They left G. Udayagiri for their village which is at a distance or 4 K. M. only at about mid-night. It was moonlit night. After some distance when they reached near a Bridge, both the accused approached them. Accused Basudav Naik who was known to P. W. 4 asked for a Bidi and getting reply in negative Basudev snatched away Rs. 50/- from him. Accused Basudev assaulted P. W. 4 with a knife and injured him. Removing a lungi from bag of P. W. 4 with assistance of the other accused tied him with that. Other accused guarded P. W. 4 when accused Basudev dragged P. W. 5 to a distance, took away her gold earrings, nose ring and making her naked, committed rape on her. When this was happening, P. W. 4 untied himself and ran away from the spot to village of P. W. 6. Immediately hearing the narration from P. W. 4, P. W. 6 and other villagers came to the spot. Finding P. W. 5 naked, they supplied a napkin to wrap her body. Both P. Ws. 4 and 5 were taken to Primary Health Centre in village of P. W. 6. Doctor of the Primary Health Centre reached at about 6 a. m. of 30-5-1985, P. W. 4 submitted a written report on basis of which investigation was conducted and charge-sheet was filed. Defence plea is one of denial.

( 3 ) PROSECUTION examined 9 witnesses. Of whom, P. Ws. 1 and 2 are Doctors. P. W. 1 the lady Assistant Surgeon of Phulbani in her evidence stated that she did not find any injury on P. W. 3. P. W. 2 is the doctor of Primary Health Centre who examined P. W. 4 and found several injuries some of which were incised. P. W. 3 is the Tahsildar who conducted the T. I. Parade. P. W. 4 is husband injured and P. W. 5 wife is the victim of rape. They narrate the incidents. P. W. 6 is the villager who on hearing from P. W. 4 proceeded with other villagers to the spot. P. W. 7 is a seizure witness. P. Ws. 8 and 9 are investigating Officers.

( 4 ) LEARNED Sessions Judge while acquitting other accused convicted the appellant u/ss. 376 and 324 IPC.

( 5 ) THAT P. Ws. 4 and 5 were proceeding to their village in mid-night of 29-5-1985 is clear from evidence of P. Ws. 4 and 5 and their evidence that some criminal acts were committed on them is also clear from their evidence corroborated by evidence of P. W. 6 material objects seized and the doctor P. W. 2. As has been rightly found by the learned Sessions Judge, story of prosecution is exaggerated I am satisfied that investigation by P. Ws. 8 and 9 are perfunctory.

( 6 ) WITH the materials available, it is to be determined if appellant committed offence of rape on P. W. 5 and hurt by knife on P. W. 4.

( 7 ) ALTHOUGH explanation of appellant is that he is not involved in the crime, cross-examination by the State defence lawyer engaged for him is most unhappy. It may be on account of insincerity or lack of experience. Evidence of P. W. 4 that he knew the appellant earlier is not shaken. In the moonlit night when P. W. 4 clearly identified the appellant, there is no reason to disbelieve the same. No enmity or earlier ill feeling has been effectively suggested. There is also no explanation by the appellant to this effect in his statement under Section 313, Cr. P. C. feature of injury is well related to have been committed by the knife seized. When P. W. 5 speaks of assault on P. W. 4 in her presence and P. W. 4 while speaking of assault identified Basudev and injury was found on him by P. W. 6 and P. W. 2 shortly thereafter, trial court is correct in convi