Point of Law: Conviction set aside – Gang Rape – Prosecution has not proved its case beyond all reasonable doubt – Hence appellant is entitled to an order of acquittal.

JUDGMENT :

S.K.Mishra, J.

The convict-appellant has been convicted for the offence under Section 376(2)(g) of the Indian Penal Code (for short ‘Penal Code’) read with Section 3(ii)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to undergo imprisonment for life by the learned Additional Sessions Judge, Bhubaneswar in C.T. Case No.1/63 of 2004, as per the judgment dated 19.01.2012.

2. The facts of the case, bereft of unnecessary details, are that the informant, being a Scheduled Caste parentless girl, was working as a labourer in a stone quarry of Kantia and was staying with some of her villagers, at a nearer hamlet Budhabapada, in a rented house of one Bhaga Behera. In the night of 06.09.2003, when she was sleeping in her house, at about 1.00 A.M. both the accused persons Dilu and Manua entered inside the house and in order to satisfy their physical lust, forcibly ravished the victim one after another and left the place posing threat with dire consequence in case she will divulge the fact to anyone. The victim sustained injuries on sensitive parts of her body due to the forced act of the accused persons. Thereafter, she divulged the incident before her employer and along with him, she went to police station and lodged F.I.R. Accordingly, after registration of the case, police investigated into the matter, examined the victim as well as the witnesses, visited the spot and conducted necessary seizure of material object and upon completion of investigation, charge sheet was submitted on 03.01.2004 against both the accused persons.

3. The accused persons took the plea of complete denial and false implication.

4. In order to substantiate the case, prosecution examined as many as 19 witnesses and relied upon documents under Ext.1 to Ext.15. Out of the 19 witnesses, P.W.1, the prosecutrix (name withheld) is the victim-informant, P.W.2 one Prakash Mangaraj who accompanied the informant to the police station. P.W.7, Dr. Pravakar Sahoo and P.W.13, Dr. Manaranjan Jena are the Medical Officers, who examined both the accused persons. P.W.18, Harish Chandra Pandey and P.W.19, Ratnakar Das are the police personnel who conducted their part of job so far as the investigation is concerned. Out of the remaining witnesses, some of them are witnesses to the seizure of wearing apparel of the victim and accused persons, some though examined as independent witnesses do not support the case of the prosecution. P.W.9, Premananda Baliarsingh is a police constable who accompanied the victim to hospital, brought the seized physical clues of the victim.

The accused persons adduced no oral and documentary evidence.

5. Relying upon the evidence of P.W.1, the prosecutrix victim and P.W.2, her employer, together with the contents of the medical examination report as well as doctors’ opinion and accepting the statement of the prosecutrix recorded under Section 164 of the Code as public document and substantive evidence, the learned Additional Sessions Judge, Bhubaneswar, even though most of the prosecution witnesses have turned hostile and the prosecutrix has not named anybody in the Examination-In-Chief, came to the conclusion that prosecution has proved its case beyond reasonable doubt against the sole appellant and convicted him under Section 376(2)(g) of the Penal Code read with Section 3(ii)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5000/-, in default to undergo rigorous imprisonment for one year. However, she acquitted the co-accused Manua @ Manoj Kumar Behera holding that there is no evidence against him.

6. Learned counsel for the appellant submits that the approach adopted by the learned Additional Sessions Judge, Bhubaneswar, in this case, is not appropriate and that she has relied upon previous statement like the statement recorded under Section 164 of the Code which is not substantial evidence an