Pradip Mohanty, J.
1. Both the aforesaid appeals are directed against the Judgment and order of conviction and sentence dated 14:12.2000 passed by the Assistant Sessions Judge, Udala in S.T. Case No. 8/65 of 2000. Therefore, they were heard together and are disposed of by this common Judgment.
2. The prosecution case in brief is that on 04.10.1999 evening the informant Ramesh Murmu (P.W.4) finding his minor daughter absent in his house searched for her and being unsuccessful lodged an information before O.I.C., Kaptipada P.S. on 13.10.1999. On receipt of such information, the O.I.C registered a case and rescued the victim along with accused Bijay from the house of one Bhagaban % Majhi of Srikanthapur under Balasore town police station, seized their wearing apparels, sent them for medical examination, arrested the accused Bijay and forwarded him in Court. After closure investigation, the O.I.C. submitted final form against the accused-Appellants under Sections 376/366/114 IPC.'
3. The plea of the accused-Appellants was complete denial of the allegations.
4. In order to prove its case, the prosecution examined as many as 13 witnesses including the prosecutrix and the doctor and proved eleven exhibits in evidence. The Appellants examined none in support of their plea.
5. The Learned Assistant Sessions Judge, Udala, who tried the case, by his Judgment dated 14.12.2000 convicted all the Appellants under Section 366 IPC and sentenced each of them to undergo rigorous imprisonment for seven years. The Trial Court also convicted Appellant- Bhua @ Bijay Murmu under Section 376 IPC and sentenced him to undergo rigorous imprisonment for ten years. It, however, acquitted Appellants Thumpu @ Rohia Murmu and Pitha Hansda of the offences under Sections 376/114 IPC.
6. Mrs. K. Rout, Learned Counsel appearing for the Appellant Bhua @ Bijay Murmu submitted that the prosecution has failed to examine the driver, conductor and cleaner of the bus, by which the Appellants had allegedly taken the victim to Balasore, and the owner of the house wherefrom the victim was rescued. The report of the doctor did not Indicate the age of the victim. The medical report also does not indicate any act under Section 376 IPC and there was no injury on the private part of the prosecutrix. The conviction is based only on the sole testimony of the victim, who is an illterate Adivasi lady and is not acquainted with the general Oriya language.
7. Mr. S.K. Nayak, Learned Addl. Standing Counsel vehemently urged that the Trial Court has rightly convicted the Appellants for the above offences basing upon the evidence of the prosecutrix. He further submitted that the victim (P.W.5) was 13 years of age at the time of occurrence and there is no material to disbelieve her evidence.
8. Perused the L.C.R. including the impugned Judgment and the written notes of argument filed by the parties. P.W.1 is the Radiologist, who proved Ext.1. He opined that the age of the victim was more than ten years and below 12 years. Nothing has been elicited from his cross-examination. P.W.2 is the mother of the victim. She stated that when she and her husband were absent, the victim was kidnapped by the Appellant Bijay. She heard the news from a shopkeeper of her Village, namely, Sukanta (P.W.3) two days after the occurrence. P.W.3, the betel shopkeeper turned hostile to the prosecution. P.W.4 is the father of the victim and the informant. He stated that on the date of occurrence he and pis wife were absent. When they came back, finding their daughter absent, they searched for her in the houses of their relations. Two days after the occurrence, he heard from P.W.3 that Appellant Bijay along with other two Appellants have kidnapped their daughter and accordingly he lodged report before Kaptipada P.S. Thereafter, on 12.10.1999 one Churia Suren, driver of a Commandar Jeep, informed him that his daughter was with Appellant-Bijay at Balasore. He informed this fact to police and accompanied them to Balasore and his daughter was rescued. Nothing contrary has been elicited from the mouth of this witness by way of cross-examination. P.W.5 is the victim. She was examined as a child witness in Santala language which was interpreted by an advocate's clerk on oath with the consent of both sides, P.W.5 stated that Appellant-Bijay forcibly took her with the other Appellants. Bijay dragged her to the land and went to bring cycle from his house - and at that time she was guarded by Appellants Pitha and Thumpu. Then Bijay forcibly made her sit on the back side of the cycle, took her to village Gohira and kept her in the house of one Parbati. Next day, he took her to Balasore by bus. Appellant Pitha also went by bus with them and Appellant Thumpu went by cycle. She specifically stated that all the Appellants were with her in that house but Appellant Bijay committed rape on her by giving threat. She also stated that she cried but did not disclose the matter to anybody. Thereafter, she was rescued by the police. By way of cross-examination nothing has been elicited to discredit her testimony. Only she has stated that she had taken bath at that time near that house. P.W.9 is the doctor who examined the victim on police requisition/She found one superficial injury of size 1/2 CBI x 1/2 CBI present on each side of the Libia minora, red in colour. Age of the injury was within six hours.
There was no foreign materials found on her body.
9. On scanning the evidence of P.W.5 it is crystal clear that Appellant Bijay committed sexual assault on the victim by giving threat to her. Out of fear she could not resist. Appellant Bijay forcibly took her on a cycle to the house of Parbati and they stayed there. Next day, Appellant Bijay took her by bus to Balasore. Appellant Pitha went by bus with them, but the other Appellant Thumpu went on a cycle. Thereafter, Appellant Bijay committed rape at Balasore on the victim girl. But she did not disclose to anybody out of fear. There is no material to disbelieve the evidence of P.W.5. Moreover, the age of the victim at the relevant time was of 13 years. So, consent is not a factor for consideration in this case.
10. From the evidence of all the witnesses it is crystal clear that all the Appellants kidnapped the victim and the Appellant Bijay committed sexual intercourse on her. In view of the above, there is no reason for this Court to interfere with the impugned Judgment and order of conviction. However, considering the fact that the Appellants are poor young Adivasis, this Court feels inclined to modify the sentence and directs as follows-
All the Appellants including Appellant Bijay are sentenced to undergo rigorous imprisonment for five years for the offence under Section 365 IPC. Appellant Bijay is also sentenced to undergo rigorous imprisonment for seven years instead of ten years for the offence under Section 376 IPC; both the sentences to run concurrently.
11. Subject to the aforesaid modification of the sentence. Both the appeals stand dismissed.