JUDGMENT :

S.K. SAHOO, J.

The appellant Litu Behera @ Jaga along with co-accused persons Samir Behera, Prakash Rout, Kabat @ Kabuli Senapati and Kalia Dalei faced trial in the Court of the learned Special Judge -cum-Sessions Judge, Cuttack in G.R. Case No.45 of 2013 for offences punishable under sections 342/34, 363/34, 366-A/34, 376-D of the of the Indian Penal Code and section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereafter ‘POCSO Act’).

The learned trial Court vide impugned judgment and order dated 19.09.2015 though acquitted the co-accused persons Prakash Rout, Kabat @ Kabuli Senapati and Kalia Dalai of all the charges and the co-accused Samir Behera was also acquitted of the charge under section 376(1) of the Indian Penal Code and section 4 of the POCSO Act, however, he was found guilty under sections 363 and 366-A of the Indian Penal Code.

The appellant was acquitted of the charges under sections 363 and 366-A of the Indian Penal Code but he was found guilty under section 376(1) of the Indian Penal Code and section 4 of the POCSO Act and was sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5000/-(rupees five thousand), in default, to undergo R.I. for a one year for the offence under section 376 of the Indian Penal Code and also to undergo R.I. for ten years and to pay a fine of Rs.5,000/-(rupees five thousand), in default, to undergo further R.I. for one year for the offence under section 4 of the POCSO Act. The sentences were directed to run concurrently.

2. The prosecution case, as per the first information report lodged by the victim on 09.09.2013 before the officer in charge of Tigiria police station is that she was having love affair with the appellant since one year prior to the lodging of the first information report. The appellant was a tractor driver and co-accused Amu Sahu and Samir Behera were the helpers of the appellant in the said tractor. It is stated in the F.I.R. that on 06.09.2013 at about 8.00 p.m. while the victim had been to the backside of her house to wash her hands, the co-accused Samir Behera and Amu Sahu came in a black colour motorcycle and told the victim that the appellant was calling her. Since the victim was having love affair with the appellant, without intimating anybody in the house, she accompanied the two co-accused persons sitting on the motorcycle. On the way when the victim asked the two co-accused persons about the appellant, they told her not to worry and assured to take her to the place where appellant was waiting for her. Accordingly, the victim was taken to a Mundia (a small hillock) of village Manpur. She found the other co-accused persons Prakash Rout, Kalia Dalai and Kabuli Senapati were sitting there. When the victim asked them about the whereabouts of the appellant, they replied that the appellant would come very soon. It is further stated in the first information report that at about 10 O’ clock in the night, co-accused Amu Sahu forcibly committed rape on the victim in spite of her protest and she was also given threat with dire consequence. After commission of rape by co-accused Amu Sahu, the other co-accused persons namely, Samir Behera, Kalia Dalai and Prakash Rout committed gang rape on her. They stayed in that hillock throughout the night and on the next day morning, the accused persons gave food to the victim and on 07.09.2013 night also all those persons namely, Amu Sahu, Samir Behera, Prakash Kumar Rout, Kabuli Senapati and Kalia Dalai committed rape on her. On 08.09.2013 evening at about 7.00 p.m. the appellant came to that place and the victim disclosed about the occurrence before the appellant. It is stated that when nobody was there in the hillock during mid-night, the appellant also committed rape on the victim and in that night both of them stayed together in a cottage and on 09.09.2013 at about 5.00 a.m., the appellant told the victim to wait in the cottage and left the place to bring cash from the ba