The court upheld the conviction for rape based on credible testimony while acquitting the appellant of attempted murder due to insufficient evidence of intent.

JUDGMENT :

S.S. Mishra, J.

The present Criminal Appeal, filed by the appellant under Sections 374(2) read with Section 382 of the Cr. P.C., is directed against the judgment of conviction and order of sentence dated 12.12.1997 passed by the learned Additional C.J.M.-cum-Assistant Sessions Judge, Rourkela in S.T. Case No.30/17 of 1997, whereby the learned trial Court has convicted the appellant for the offences under Section 376 /307 of I.P.C. and sentenced him to undergo R.I. for seven years for the offence under Section 376 of I.P.C. and pay a fine of Rs.20,000/-, in default, to undergo further R.I. for two years. The appellant has been further sentenced to undergo R.I. for five years and to pay a fine of Rs.10,000/-, in default, to undergo R.I. for one year for the offence under Section 307 of I.P.C.

2. Heard Ms. Kirtika Banarjee, learned counsel for the appellant and Mr. Ashok Kumar Apat, learned Additional Government Advocate for the State.

3. The prosecution's story in terse and brief is that:-

(a) On 24.09.1996 at afternoon, the victim (P.W.9) being daughter of (P.W.6) Rajendra Mahato, went to take bath in a well near a paddy field. The accused-appellant came to her and gagged her mouth, lifted her bodily to the nearby paddy field. Then, he committed rape on her.

(b) It is further alleged that the accused-appellant left the victim inside the well and went away. The victim somehow escaped and came home and disclosed the incident to her father and brother, who in turn called for a village meeting on the same day. The incident was confronted with the appellant, who denied the same. Therefore, Birsa P.S. Case No.58 dated 28.09.1996 has been registered.

(c) After investigation, charge-sheet was filed against the appellant and charges were framed for the offence under Section 376 /307 of the I.P.C. and the appellant was put to trial on the denial of charges.

4. The prosecution in order to bring home charges, examined twelve witnesses to establish its case. However, the defence took a stance of denial. P.Ws.1 & 2 were the villagers, those who had participated in the meeting called by the father of the victim. P.W.3 is the uncle of the victim girl. P.W.4 is the wife of P.W.3, who is an aunt of the victim. P.W.5 claims to be an eyewitness to the occurrence. P.W.6 is the father of the victim girl, whereas P.W.7 was the seizure witness. P.Ws.8 and 11 were the I.O. of the case. P.W.9 is the victim girl whereas P.W.12 was the doctor, who examined the victim.

5. After taking into consideration the evidence of all the witnesses, those who have deposed in unison confirming the incident as narrated by the victim (P.W.9), the learned trial Court found the appellant guilty for the offence punishable under Sections 376 /307 of I.P.C. and imposed penalty as mentioned above.

6. Ms. Banarjee, learned counsel for the appellant, submitted that this is a case of clear acquittal as the testimony of the witnesses if carefully scrutinized, it would reveal that inconsistency in testimony are apparent. Therefore, the trustworthiness of the evidence of the witnesses is clearly doubtful particularly the testimony of P.W.9, the victim, inspires no confidence because the incident alleged to have happened in the afternoon and she herself has deposed that there were other persons present near the well where she was taking bath. Therefore, the testimony cannot be relied upon. She has very empathically relied upon