JUDGMENT :

S. K. SAHOO, J.

The appellant Rabi Banka faced trial in the Court of learned Additional Sessions Judge -cum-Judge, Special Court, Bargarh in C.T. Case No.95 of 2007 for offences punishable under sections 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter ‘1989 Act’) and section 376 of the Indian Penal Code on the accusation that from 12.02.2007 for a fortnight, in village Attabira and at Sahasmunda, he being in a position to dominate the will of the victim girl belonging to the scheduled caste, used that position to exploit her sexually to which she would not have otherwise agreed and committed rape on the victim without her consent on the false assurance of marriage.

The appellant was acquitted of the charge under section 3(1)(xii) of the 1989 Act vide impugned judgment and order dated 10.11.2008 but was found guilty under section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/-(rupees two thousand), in default, to undergo further rigorous imprisonment for a period of six months.

2. The prosecution case is that the victim girl (P.W.1) was Ganda by caste which comes under the scheduled caste and the appellant was Gouda by caste which comes under nonscheduled caste and non-scheduled tribe category. The victim was aged about fifteen years at the time of occurrence and she was illiterate and working as a labourer in a rice mill at Attabira and the appellant was also a labourer working in the same rice mill. The appellant repeatedly approached the victim and told her that he was in love with her and he wanted to marry her. Initially the victim denied to any such proposal given by the appellant but when the appellant told the victim that he was a bachelor and unless she agreed with the proposal of marriage, he would consume poison and commit suicide, the victim being a rustic and uneducated girl trusted the appellant and eloped with him. The appellant took the victim to the house of his aunt and they spent a night there. On the next day, they proceeded to village Sahasmunda where they stayed in the house of the maternal aunt of the appellant for a fortnight. The appellant assured the victim to marry her and started cohabiting with her. Subsequently, the victim came to know that the appellant was not a bachelor and he was having his wife and son. Coming to know about the same, the victim was frustrated and disappointed on such conduct of the appellant and challenged the appellant as to why he cheated her on the false assurance of marriage and subjected her to sexual intercourse. The appellant took the victim on the 15th day to Attabira and left her there. The victim disclosed about the occurrence before her parents and also stated as to how the appellant betrayed her.

3. The victim lodged the first information report on 01.03.2007 before the officer in charge of Attabira police station and accordingly Attabira P.S. Case No.23 of 2007 was registered under sections 366/376/506 of the Indian Penal Code and section 3 of the 1989 Act. P.W.7 Prasanta Kumar Bhoi who was the S.D.P.O., Bargarh took up investigation of the case. During course of investigation, he examined the victim, her parents and other witnesses and seized the wearing apparels of the victim and prepared the seizure list (Ext.4) in presence of the witnesses. He sent the victim for medical examination and P.W.5 Dr. Manoj Kumar Jena who was the Associate Professor, F.M.T., V.S.S. Medical College, Burla examined the victim. The I.O. visited the spot and examined the witnesses and reduced the statements into writing, arrested the appellant and sent him for medical examination and seized the wearing apparels under seizure list (Ext.5) and he also sent the seized articles for chemical analysis and obtained the chemical analysis report (Ext.8). He also received the medical examination reports of the appellant as well as the victim and on completion o