The duty of the court to consider the entire evidence of a witness, including their cross-examination, and the requirement of probative evidence to establish guilt beyond reasonable doubt.

JUDGMENT :

B.K. Misra, J. - The Appellant, who has been convicted u/s 376(2)(g) of the Indian Penal Code (for short the "I.P.C.") and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 2000/-in default to further undergo rigorous imprisonment for six months in S.T. Case No. 27/16 of 2006 by the Ad hoc Additional Sessions Judge (Fast Track Court No. II), Keonjhar being aggrieved has preferred this appeal.

2. The case of the prosecution is that the victim (prosecutrix) (P.W.2), who happens to be the first wife of the informant Pradeep Kumar Pradhan, (P.W.1) on 29.9.2005 around 5 P.M. had gone to a well at "BEDANALA" to fetch water and while she was returning, the present Appellant along with one Duan Giri raped her. Information was lodged by P.W.1 in writing before the O.I.C., Nayakote Police Station vide Ext.1. On receipt of the said information, Police took up investigation of the case and on completion of the investigation charge sheet against the present Appellant and Duan Giri u/s 376(2)(g) of the I.P.C was placed. I may mention here that though both the accused persons were convicted by the learned trial court u/s 376(2)(g) of the I.P.C. but the present Appellant only has preferred this appeal.

3. The plea of the Appellant was of complete denial of the allegations. It is his further plea that since he had landed property dispute with Pradeep (P.W.1), therefore he has been falsely implicated in this case.

4. The prosecution in order to bring home the guilt of the accused persons examined nine witnesses in all and of them P.W.1 is the informant. P.W.2 is the prosecutrix. P. Ws.3 to 5 are the three eye-witnesses to the occurrence. P.W.6 is a "Panch" witness to testify about the extra judicial confession made by the Appellant as well as accused Duan Giri before the villagers to have raped P.W.2. P.W.7 is the Police Havildar who speaks of the seizure of the glass vials containing pubic hairs of the prosecutrix as well as of the accused persons. He also speaks about the seizure of the full pant of the present Appellant besides seizure of five numbers of X-ray plates of the prosecutrix. P.W.8 is the I.O. and P.W.9 is the medical officer who had examined the victim.

The accused persons declined to examine any witness in his defence.

5. The learned Trial Court on analyzing the evidence as laid by the prosecution came to the conclusion that the prosecution has well established its case against the accused persons and accordingly while convicting the Appellant as well as the other accused passed the impugned sentences, which is under challenge by the present Appellant in this appeal.

6. The learned Counsel appearing for the Appellant while assailing the order of conviction and sentences contended that the order of conviction and sentences so far as the present Appellant is concerned cannot be sustained in the eye of law for a moment as there is absolutely no credible evidence on record to hold that the present Appellant along with the accused Duan committed the offence of gang rape and the alleged extra judicial confession should not have been relied upon in view of the evidence of P.W.2, the prosecutrix.

7. The learned Counsel appearing for the State on the other hand contented that the order of conviction and the sentences imposed on the Appellant calls for no interference as those are based on proper appreciation of evidence on record.

8. Upon hearing the learned Counsel appearing for the Appellant as well as the learned Additional Government Advocate for the State and on a close and critical analysis of the evidence on record, I find that the sole evidence of P.W.2, the prosecutrix should not have been relied upon by the learned trial court. It is the case of the prosecution that on 29.9.2005 around 5 P.M. the prosecutrix had gone to fetch water from a well at "BEDANALA" and while she was returning, she was ravished by the present Appellant as well as the accused Duan Giri. Admittedly, P.W.1, who happens to