The prosecution must prove the foundational facts of rape beyond reasonable doubt; otherwise, the presumption of absence of consent under Section 114A of the Evidence Act cannot be applied.

JUDGMENT :

S.K. SAHOO, J.

1.The appellant Saluka Baipai faced the trial in the Court of learned Additional Sessions Judge, Talcher in C.T.(S) Case No.93 of 2016 for offence punishable under section 376 of the Indian Penal Code (hereinafter ‘the I.P.C.’) on the accusation that on 04.03.2016 at about 7.00 a.m. at Choranala jungle, he forcibly committed rape on the victim without her consent. The learned trial Court vide judgment and order dated 17.03.2020 found the appellant guilty under section 376 of the I.P.C. and sentenced him to undergo R.I. for seven years and to pay a fine of Rs.15,000/- (rupees fifteen thousand), in default, to undergo R.I. for six months.

The Prosecution Case:

2. The prosecution case, as per the first information report (hereinafter ‘the F.I.R.’) lodged by the victim on 05.03.2016 before the O.I.C., Khamar Police Station in the district of Angul, is that on 04.03.2016 at about 7 O’ clock in the morning, she had been to Choranala jungle to attend call of nature, where the appellant, who was her co-villager, committed rape on her. On such report, Khamar P.S. Case No.20 dated 05.03.2016 was registered against the appellant under section 376 of the I.P.C.

3. P.W.13 Namita Nayak, the O.I.C. of Khamar Police Station took up investigation of the case, examined the informant and other witnesses, visited the spot and prepared the spot map (Ext.11), arrested the appellant and forwarded him to the Court after medical examination and other formalities. She also seized the wearing apparels of the appellant under seizure list Ext.5. The biological samples of the appellant on production of the escort party after his medical examination were seized and she also received the medical examination report of the appellant. Prayer was made to the learned S.D.J.M., Pallahara for recoding of the statement of the victim under section 164 of Cr.P.C. and the victim was also sent for her medical examination and her wearing apparels were seized under seizure list vide Ext.8, and the exhibits were dispatched to the S.F.S.L., Rasulgarh, Bhubaneswar through the learned trial Court and on completion of investigation, charge sheet was submitted against the appellant under section 376 of the I.P.C.

Prosecution Witnesses & Documents Exhibited:

4. During course of the trial, in order to prove its case, the prosecution examined as many as thirteen witnesses.

5. P.W.1 Dr. Chinmaya Kumar Panda was the Medical Officer at the Community Health Centre, Khamar who examined the appellant and stated that at the time of examination, he did not found any bodily injuries on the appellant’s person and that he was capable of sexual intercourse.

6. P.W.2 Dr. Subhadra Misra was posted as an Assistant Surgeon of Khamar C.H.C. who examined the victim (P.W.3) on police requisition and stated that at the time of examination of the victim, she was aged about twenty years and there was no bodily injury on her person suggestive of forcible sexual intercourse.

7. P.W.3 is the victim who stated that on the date of occurrence at about 7.00 a.m., she had been to attend call of nature to Choranala and while she was returning home after attending the call of nature, suddenly the appellant caught hold of her and after stripping her, forcibly committed rape on her.

8. P.W.4 Raghunath Pradhan was posted as a constable at Khamar Police station who stated that one black colour full pant and one while black colour shirt were seized in his presence on production of the appellant by the O.I.C., Khamar Police Station (P.W.13) and he is a witness to such seizure vide