D.G.R.PATNAIK, J. - (1.) THE appellants have preferred the instant application against the judgment of conviction dated 26.05.2003 and its corresponding order of sentence dated 29.05.2003, whereby both the appellants were convicted for the offence under Sections 376(2)(g) and under Section 448 of the I.P.C. and sentenced to undergo rigorous imprisonment for a period of ten years for the offence under Section 376(2)(g) and further for a period of six months under Section 448 of the Indian Penal Code.
(2.) THE case against the appellants was registered on the basis of the Fard Beyan of the informant/prosecutrix (P.W. 2) at 11:00 hours on 09.04.2000. The allegations in the F.I.R. are that on 28.03.2000, while the prosecutrix was at her house at about 6 P.M., both the present appellants, who happen to be her husbands cousins came to her house. At that time, she was alone in the house, her husband had gone to the forest for hunting while her mother was grazing cattle in the open field behind the house. The prosecutrix has alleged that after entering into her room, the appellant, Munshi Tudu made her lie down on the ground and forcibly committed rape on her. The act was followed by the co - appellant, Shyamlal Tudu. After having ravished her, they took away a sum of Rs. 4,000/ - kept in the shelf. The money was withdrawn by the informant from the Bank two days earlier for household expenses. It is further alleged that before leaving the house, both the appellants issued threats of dire consequences to the prosecutrix and had also assaulted her with Lathi. Thereafter, she went to her mother and reported the matter. She also reported the matter to her husband on his return home. The matter thereafter was reported by her husband to the Village head for convening a Panchayati but the Panchayati could not be convened on account of the failure of the accused persons to attend the Panchayat meeting and thereafter ultimately the matter was reported by the prosecutrix to the Police on 09.04.2000. The appellants were charged for the offences under Sections 376(2)(g), 448 and 379 of the Indian Penal Code. Both of them have denied the charges and had preferred to be tried. At the trial as many as five witnesses were examined by the Prosecution including the prosecutrix, her husband and her mother. Significantly, neither the Investigating Officer, nor the Doctor has been examined nor any Medical Report been adduced in evidence.
(3.) OUT of the five witnesses examined by the prosecution, P.W. 1, Shani Ram Marandi, P.W. 2, Talamai Hembram, P.W. 3, Sardar Mimimli, P.W. 4, Sangram Tuilu as well as P.W. 5 Barki Tudu, who is the mother of the prosecutrix, have failed to support the prosecutions case. The husband of the prosecutrix. Sangram Tudu (P.W.4), had though not been declared hostile but his evidence lends only partial support by way of hearsay evidence to the testimony of the prosecutrix.;