The court may extend the benefit of the Probation of Offenders Act to an appellant based on age, time elapsed since the offence, and lack of subsequent criminal activity.

JUDGMENT :

S.S. Mishra, J.

This criminal appeal is directed against the judgment of conviction and order of sentence dated 21.12.1999 passed by the learned 1^st Additional Sessions Judge, Berhampur, in S.C. No.28 of 1999(S.C. No. 215 of 1999 G.D.C) whereby the appellant was found guilty of the offence punishable under Section 354 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/-, in default to undergo R.I. for one month.

2. Heard Mr. B.K. Mishra, learned Counsel for the appellant and Mr. A.K. Apat, learned Additional Government Advocate for the State.

3. The prosecution case, in brief, is that at about midnight of 03.04.1999, the victim girl, then aged about nine years, was sleeping on the danda verandah of her house along with her younger sister. It is alleged that the accused, taking advantage of the late hours, lifted the cloth worn by the victim and forcibly inserted his finger into her private part (vagina), as a result of which she sustained pain and raised alarm. Hearing her cries, her parents, who were sleeping in the adjoining room, immediately came out and enquired about the incident. The victim disclosed that the accused, namely Kalu Behera, had inserted his finger into her private part and thereafter ran into his house and closed the door.

On the following morning, the informant-mother accompanied the victim to Berhampur Sadar Police Station and brought the police to the village; however, the accused was not found in his house. On the point of jurisdiction, the case was handed over to Mahila Police Station, Berhampur. The Officer-in-Charge of the said police station took up investigation, got the victim medically examined and, upon completion of investigation, submitted charge-sheet against the accused for the alleged offence. On the stance of denial and claim of trial, the appellant has been subjected to trial after charges were framed.

4. To substantiate its case, the prosecution examined six witnesses in total. P.W.1 was a co-villager of the informant. P.W.2 was the doctor, who examined the victim on police requisition. P.W.3 is the informant-mother. P.W.4 is the prosecutrix-victim. P.W.5 was another co-villager. P.W.6 was the Officer-in-Charge of Mahila Police Station, who was also the Investigating Officer of the case. Certain documents were also exhibited on behalf of the prosecution.

5. The learned Trial Court, upon appreciation of the evidence on record, found the testimony of the prosecutrix to be cogent and reliable and convicted the appellant. The learned Trial Court observed as follows:

“11. That apart, the piercing cross-examination of the defence also could not be able to shake the evidence of the girl on the material particulars as regards the commission of the occurrence. No suggestion has been put to her that she has not seen the accused for want of light at that place. On the other hand, she has emphatically stated that it was the accused who had inserted his finger inside her vagina, when her mother opened the door at her shouting, the accused ran inside his house and closed the door. I do not find any infirmity in the statement of the victim girl and accordingly, her statement is found to be cogent and reliable.”

After considering the medical evidence and the other materials available on record, the learned Trial Court recorded the finding of guilt against the accused under Section 354 of the Indian Penal Code and sentenced him to undergo imprisonment for one year along with fine as indicated above. Being aggrieved by such judgment of conviction and order of sentence, the present appeal has been preferred.

6. A