GHUKU Vs. STATE OF ODISHA

JUDGEMENT

(1.) The appellant Ghuku @ Buku @ Fuku @ Hookusingh Lama faced trial in the Court of learned Presiding Officer, Special Court (S.C. and S.T.), Balasore in Special Case No.344 of 2016/CIS No.186 of 2016 for commission of offences punishable under Sec. 342/ 365/ 376(1) of the Indian Penal Code read with sec. 3(2)(v)/3(2)(va) of the S.C. and S.T. (POA) Act. The learned trial Court vide impugned judgment and order dtd. 16/5/2018 while acquitting the appellant of the charges under Sec. 3(2)(v)/3(2)(va) of the S.C. and S.T. (POA) Act, found the appellant guilty of the offences under Sec. 342/ 365/376(1) of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000.00 (rupees one thousand), in default, to undergo rigorous imprisonment for two months more for the offence under sec. 342 of the of the Indian Penal Code; rigorous imprisonment for three years and to pay a fine of Rs.5,000.00 (rupees five thousand), in default, to undergo rigorous imprisonment for six months more for the offence under sec. 365 of the Indian Penal Code and rigorous imprisonment for ten years and to pay a fine of Rs.10,000.00 (rupees ten thousand), in default, to undergo rigorous imprisonment for two years more for the offence under sec. 376(1) of the Indian Penal Code and all the sentences were directed to run concurrently.

(2.) The prosecution case, in short, as per the first information report lodged by Shri Rabindra Jena (P.W.5) before the I.I.C., Sadar police station, Balasore on 17/3/2016 is that he was working as a labourer in the Oriplast Pipe Factory of Balasore and as usual on 16/3/2016 his younger daughter (hereafter 'the victim) (P.W.8), who was aged about nineteen years, came at about 12.45 p.m. with the tiffin box to hand it over to him but she did not return back home on that day. P.W.5 made frantic search of the victim at different places but could not locate her for which he lodged a missing report (Ext.2) at Sadar police station, Balasore on 17/3/2016. Thereafter, he received information that on 16/3/2016 in the afternoon, the appellant had taken away the victim in a cycle towards Bamapada, which was seen by others. P.W.5 searched for the victim and could locate her and the victim told him that on 16/3/2016, the appellant confined her in his house and by gagging her mouth, committed rape on her. Seeing P.W.5, the appellant tried to flee away by jumping over a wall and in that process, he sustained injury on his head. On the basis of such first information report, Balasore Sadar P.S. Case No.54 dtd. 17/3/2016 was registered against the appellant under Sec. 342/ 365/376(1) of the Indian Penal Code and sec. 3(1)(xi) of the S.C. and S.T. (POA) Act. On the request of the I.I.C. of Sadar police station, P.W.10 Prafulla Chandra Badajena, the S.D.P.O., Sadar, Balasore took charge of investigation and during course of investigation, he examined the witnesses, visited the spot, prepared the spot map (Ext.9), issued requisition to S.P., Balasore for deputation of lady Sub-Inspector/Inspector for assisting him in investigation. He seized one blue colour saree and one red white mixed colour blouse of the victim under seizure list Ext.3. He also seized the man missing report of the victim as per seizure list Ext.1 and one blue colour Avon bicycle of the appellant as per seizure list Ext.4 and handed over the seized cycle in the zima of one Suraj Bahadur under zimanama Ext.10. He sent requisition to Tahasildar, Remuna for furnishing caste particulars of the informant, the victim and the appellant. On 18/3/2016, the Investigating Officer seized one green and black colour butterfly print sky colour frock used by the victim at the time of occurrence, which was produced by the informant under seizure list Ext.6. On the very day, the Investigating Officer also sent the victim to D.H.H., Balasore for her medical examination and made prayer to the learned S.D.J.M., Balasore for recording the statement of the victim under sec. 164 Cr.P.C., which was accordingly recorded. On 21/3/2016, the Investigating Officer seized the biological collection and X-Ray plate on production by the constable from D.H.H., Balasore. The appellant was arrested on 21/3/2016 and was sent for medical examination. The biological exhibits of the appellant were also seized after the same was collected by the Medical Officer. The appellant was forwarded to Court on 22/3/2016. On the basis of the prayer of the Investigating Officer, the learned S.D.J.M., Balasore sent the exhibits to R.F.S.L., Balasore for chemical examination and opinion. The caste particulars of the informant and the victim were received from the Tahasildar, Remuna which reflected that the victim belonged to Khadala by caste which was coming under 'Scheduled Caste'. So far as the caste of the appellant is concerned, the Tahasildar, Remuna suggested to obtain the same from Balasore Tahasil but the caste certificate of the appellant has not been proved during trial. On 5/7/2016, on his transfer, P.W.10 handed over the charge of investigation to Amaresh Panda (P.W.11), S.D.P.O., Sadar, Balasore and after making local enquiry that the appellant did not belong to Scheduled Caste or Scheduled Tribe category, charge sheet dtd. 16/7/2016 was placed against him under Sec. 342/365/376 of the Indian Penal Code read with sec. 3(2)(v)(va) of the S.C. and S.T. (POA) Act and the learned trial Court took cognizance of offences under which charge sheet was submitted.

(3.) The learned trial Court on 6/10/2016 framed the charges against the appellant as already stated and since the appellant refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt.