L.MOHAPATRA, J. - (1.)THIS revision is directed against a judgment and order, passed by both the Courts below convicting the petitioner for commission of offence Under Section 376 of the Indian Penal Code and sentencing him to undergo imprisonment for 7 years and pay fine of Rs. 4,000/ -.
(2.)THE case of the prosecution is that on the date prior to the lodging of F.I.R. at about 7 A.M. while the prosecutrix was sweeping the front courtyard of her elder father, Nabei Sahu, the petitioner who is a co -villager came near her. Prior to that date, the petitioner had proposed to marry the prosecutrix on several occasions. On the date of occurrence when the petitioner came near her, she tried to enter inside the house of her elder father out of fear but the petitioner is alleged to have forcibly embraced her and lifted her inside the house of her elder father. It is further alleged that the petitioner made her naked, gagged her mouth by putting his hand undressed himself and forcibly committed rape on her. While trying to go away from the spot after commission of the offence, the prosecutrix followed him to his house and cried there and disclosed about the incident; The petitioner and his father assured her to accept her as petitioner's wife but the mother of the petitioner did not agree and threatened to assault the prosecutrix. Thereafter, she raised hue and cry and hearing the same, the villagers gathered at the spot and the prosecutrix narrated the incident before the villagers. The petitioner is also alleged to have made extra judicial confession of his guilt in presence of the said witnesses. On the same day at about 4 P.M., a meeting was convened. Though the father of the petitioner attended the meeting, the petitioner did not come. The prosecutrix sat in front of the house of the petitioner and decided not to leave the place unless the petitioner marries her. It is alleged that the uncle of the petitioner namely, Kisori forcibly drove her out of the house and ultimately on 10.5.1997, the incident was reported at Angul Police Station. The case was investigated into and charge sheet was submitted for commission of offence Under Section 376 of the Penal Code and the petitioner faced the trial. The plea of the petitioner is one of complete denial of the occurrence. The further plea of the petitioner is that father of the prosecutrix had given the proposal for marriage of the prosecutrix with the petitioner and when the father of the petitioner did not agree to the proposal, this false case has been started against him.
In order to bring home the charge, the prosecution examined 9 witnesses and in order to prove the defence plea, 5 witnesses were examined from the side of the defence. The learned C.J.M. - Curn - Assistant Sessions Judge, found the petitioner guilty of the charge on the following findings.

(a) Referring to a decision of this Court, the learned Asst. Sessions Judge held that in sexual offences, delay cannot be a ground to reject prosecutrix's version on suspicion. Though there was 4 days delay in the present case in lodging the F.I.R. the learned Asst. Sessions Judge held that such delay cannot be taken into consideration in order to disbelieve the entire prosecution case. Though it was contended before the learned Asst. Sessions Judge that P. Ws. 2 to 4 were interested witnesses being relatives of the prosecutrix, it was found that evidence of P.Ws. 2 to 5 cannot be thrown out solely on the ground that they are related to the prosecutrix when the crux of the evidence is found corroborated in the evidence of D.Ws. 2, 3, and 5. The learned Asst. Sessions Judge also held, that non -examination of all the witnesses mentioned in the charge sheet cannot be a ground for disbelieving the prosecution case.

(b) In absence of any evidence from the side of the prosecution that the prosecutrix resisted the accused, that there was struggle between them at the time of commission of the offence and that the accused -petitioner was examined 4 months after the date of occurrence and no injury could be found on his person, cannot be grounds to say that the prosecutrix had consent.

(c) The extra judicial confession alleged to have been made before P. Ws. 2 to 4 is not worthy of belief and the same cannot be taken into consideration to form a basis of conviction.

(d) Since the offence was committed against the consent of the prosecutrix the age of the prosecutrix become immaterial for the purpose of proving the offence.

(3.)CHALLENGING the order of conviction and sentence the petitioner filed an appeal which was heard by the learned Addl. Sessions Judge, Angul. The appeal was also dismissed on similar findings giving rise to the present revision.