The court upheld the conviction under Section 363 but exonerated the petitioner under Section 376 due to lack of forced sexual intercourse and credible evidence regarding victim's age and consent.

JUDGMENT :

S.K. Panigrahi, J.

1. This CRLREV has been filed challenging the judgment dated 02.07.2005 passed by the Learned IInd Ad hoc Addl. Sessions Judge, Sundargarh in Criminal Appeal No. 63/ 34 of 2004-2005 (arising out of ST Case No. 254/4 of 2003-04 decided by Learned CJM-Cum-Asst. Sessions Judge, Sundargarh) confirming the conviction and modifying the sentence vide judgment dated 23.09.2004 in Sessions Trial No.254/4 of 2003-04 (arising out of GR Case No. 570 of 2001 corresponding to Bhasma P.S. Case No.102 of 2001, committed to the court of Sessions by the Learned S.D.J.M., Sundargarh).

I. FACTUAL MATRIX OF THE CASE

2. The petitioner in this criminal revision, inter-alia, is challenging the judgment dated 02.07.2005 passed by Learned IInd Ad hoc Addl. Sessions Judge, Sundargarh in Criminal Appeal No. 63/34 of 2004- 2005 (arising out of ST Case No. 254/4 of 2003-04 decided by Learned CJM-Cum-Asst. Sessions Judge, Sundargarh) confirming the conviction and modifying the sentence vide judgment dated 23.09.2004 in Sessions Trial No. 254/4 of 2003-04 (arising out of GR Case No. 570 of 2001 corresponding to Bhasma PS Case No. 102 of 2001, committed to the court of Sessions by the Learned SDJM, Sundargarh), wherein the Learned CJM-Cum- Asst. Sessions Judge, Sundargarh passed sentence the convict to undergo RI for 7 years and to pay a fine of Rs. 2,000/- in default to payment undergo simple RI for two months so far as the offence under Section 376 (1) of the I.P.C. is concerned and further sentence the convict to undergo rigorous imprisonment for three years and to pay fine of Rs. 1,000/- in default to undergo simple imprisonment for one year so far as the offence under Section 363 of the I.P.C. is concerned, substantive sentence to run concurrently.

3. The Learned IInd Ad hoc Addl. Sessions Judge, Sundargarh confirmed the conviction and modifying the sentence and partly allowed exonerating offence under Section 376 (1) of the I.P.C. and set aside the sentence imposed by the court below, however, convict the petitioner u/s 363 of IPC and confirmed the substantive sentence reduced it to rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/- in default to undergo further R.I. for one month.

4. The brief fact of the case is that, on 12.10.2021 the informant Parbati Patel, W/o - Raghunath Patel of Ledhimong, PS - Bhasma Dist - Sundargarh lodged a written report before the IIC, Bhasma PS alleging therein that the said Raghunath Patel as an indoor patient at the District Headquarters Hospital, Sundargarh and his wife Parbati Patel was also at the hospital to look after him and that their children including the eldest daughter namely Pankajini who was aged about 15 years and 6 months at the relevant time were at the home, when the parents came back from the hospital after spending about 10 days there, they found their eldest daughter missing and an enquiry they came to learn on 05.10.2001 that the petitioner being a co- villager and a married person with a male child had taken her daughter to some place by assuring her that he would keep her as his wife.

5. The paternal uncle of the victim girl along with two bothers found the petitioner and the victim girl in the house of the sister and brother-in-law of the petitioner situated at Vill - Sourimuna and after obtaining undertaking in writing from the petitioner and the victim girl in presence of some gentlemen of that village to the effect that they would not leave that house till arrival of the gentries from the village of