JUDGMENT

Dr. A.K. MISHRA, J. - This revision filed to assail the concurrent verdict in convicting the petitioner-accused U/s.376 of the Indian Penal Code (hereinafter referred to as the “I.P.C.) and sentencing to undergo seven years of rigorous imprisonment and to pay a fine of Rs.1000/-, in default to further undergo rigorous imprisonment for six months with a direction to pay Rs.800/- to the victim as compensation if the fine amount is realized. The aforesaid conviction and sentence passed by the learned Assistant Sessions Judge dtd. 25.11.1997 in S.T. Case No.3-A of 1997 as been confirmed by the learned Additional Sessions Judge, Angul in Criminal Appeal No.1 of 1998 vide judgment dtd. 20.3.2001.

2. The prosecution case in brief is that on 11.11.1994 at about 12 midnight in village Puleswar while victim ( P.W.2) was sleeping in her hut and her husband (P.W.4) had gone to Athamalik Bazar to witness “Parayan”. Accused scaled over the damaged wall, entered inside, lifted her to ‘“Bari” (backside of the house) had committed sexual intercourse against her will giving threatening. Informant knew that accused was imprisoned for having murdered a woman for which she did not scream out of fear. The husband of victim returned. Informant disclosed the incident. Both of them went to the house of neighbour. P.W. 3 and 5, thereafter went to police station,. Informant orally reported the matter which was reduced into writing and F.I.R. (Ext.3) was registered at 1 A.M., i.e. after one hour of the incident, i.e on 12.11.1994. The medical examination of victim was made by Doctor (P.W.6) who submitted report ( Ext.2). On 14.11.1994 the statement of the victim (Ext.5) U/s. 164 Cr.P.C. was recorded. The accused absconded and was arrested on 26.9.1996. After completion of investigation, charge-sheet was submitted showing the accused absconder. Case was committed to the court of Sessions.

3. In support of their case, prosecution examined 8 witnesses while defence examined one.

4. In the trial, defence took the plea of denial and false implication due to enmity.

5. Basing upon the evidence of informant (P.W.2) getting corroboration from medical examination report of doctor (P.W.6) and post occurrence witnesses P.Ws.3,4 and 5, learned trial court convicted the accused and sentenced in the above manner.

5.(a) Learned trial Judge, on analysis of evidence, found that the plea of defence regarding prior enmity was not correct, the evidence of victim was reliable and got corroboration from her husband and independent witnesses, her neighbour. The medical evidence through P.W. 6 did not run contrary as the victim was a married lady. The lodging of F.I.R. soon after occurrence and recording of statement U/s.64 Cr.P.C. strengthened prosecution case. Learned trial Judge also analyzed law in threadbare to record conviction.

5. (b) Accused preferred appeal. The Appellate Court reiterating the findings of learned trial court and relying upon Section 114-A of the Evidence Act, dismissed the appeal.

6. In this revision the appellant who was directed to deposit the fine amount, has failed to do so.

7. Learned counsel for the petitioner vehemently urged that –

(i) the evidence of victim is not reliable as she had neither raised protest nor shouted to attract the attention of neighbour for which she should be considered as an accomplice or consenting party.

(ii) the medical evidence regarding absence of recent sign and symptom of sexual intercourse is sufficient to nullify the story of prosecution and both the Courts, having not appreciated the evidence in proper perspective, the conviction of accused should be set aside.

He further contended that the conviction of petitioner is not supported by any legal sufficient evidence and is against the manifest weight of evidence.

8. Learned Additional Government Mr. K.N. Das supported the conviction and sentence of the petitioner on the grounds stated therein. Added to that it is submitted on behalf of State that initially