D.M. Patnaik, J.
1. Both the appeals arise out of the same judgment of the Chief Judicial Magistrate-cum-Assistant Sessions Judge, Ganjam, Berhampur in a case under Section 376, IPC. The Government Appeal is against the order of acquittal of respondent K. Adinarayana of the charge under Section 376, IPC whereas, the Criminal Appeal by appellant K. Adinarayana is against his conviction under Section 366, IPC and sentence of rigorous imprisonment for three years. Both the appeals are disposed of by this common judgment.
2. Prosecution case is, in the night around 1.00 a.m. on 25-3-1983 accused K. Adinarayana along with his co-accused persons Debaraj Das, Jogendra Naik and Mochia Das (since acquitted) bodily lifted the victim lady aged about 25 years from the verandah of one Sukuta and carried her inside a paddy field. While accused K. Adinarayana committed rape on the victim lady, others stayed nearby. P.W.3 and other witnesses brought the victim lady to the village and in the same night complained of the act committed by the appellant to P.W.5, the Block Development Officer under whom the accused was then serving as a peon. F.I.R. was lodged by P.W.3, the eye-witness, on the same night of occurrence. During investigation the accused as well as the victim lady was medically examined. After completion of investigation charge-sheet was submitted against accused K. Adinarayana and his co-accused persons. While others were acquitted, accused K. Adinarayana was convicted and sentenced as indicated above.
3. The plea of the accused was a complete denial of the occurrence. It was pleaded that this false allegation was at the instance of one Prafulla Kumar Sahu with whom he had enmity for which the latter masterminded the plot so alleged.
4. Heard Mr. S.C. Satapathy, learned counsel for the State in Govt. Appeal and Mr. D. Sarangi, learned counsel for the appellant in the Criminal Appeal.
I am not satisfied with the submission of the learned counsel for the State in the Government Appeal that the lower Court committed an error in recording an order of acquittal without considering the relevant materials proving indictment of rape, because the trial Court has taken into account the medical opinion of P.W.1 on examination of the victim lady (P.W.8), that there was no sign of recent sexual intercourse. This finding cannot be said to be incorrect on the face of medical evidence. That apart, 1 find from the evidence of the doctor who opined that the lady was accustomed to previous sexual intercourse and further, the vaginal passage admitted three fingers and that she had meastrual bleeding at the time of examination. With this material the prosecution case of rape becomes doubtful. The argument of the learned counsel for the State that because the doctor found scratch marks on the breast and the chest of the lady alone would be sufficient to prove a case of rape cannot be accepted in the absence of any other corroborative material with regard to the actual sexual intercourse. It is unfortunate that the victim lady is a dumb one has been examined by the prosecution as P.W.8. She has not been able to state anything and the Court has recorded that she gave no signs and did not give any reply to the questions.
Therefore, the prosecution having failed to prove the act of rape by appellant K. Adinarayana beyond reasonable doubt, the finding with regard to acquittal of the appellant is found to be correct. The same is confirmed. The Government Appeal therefore fails.
5. So far as conviction of the appellant under Section 366, IPC is concerned, having heard learned counsel for the appellant, I do not find any justifiable reason to set aside the conviction since the finding is based on correct appreciation of evidence on record and the judgment does not suffer from any infirmity.
6. The material part of the evidence of P.W.3 in this case is that in the night of occurrence around 1 a.m. in between the date 24-3-83 and 25-3-83 he was sleeping on the verandah of his residential house where he was having a hair-cutting saloon. Hearing unusual sound he woke up and found appellant K. Adinarayana and others carrying away the victim lady through the village street towards paddy field. He informed this to other persons including P.Ws.2, 4 and 7 and all went to the place of occurrence. He was carrying a torch light. They proceeded to a distance of about one furlong from the village. With the focus of the torch light from a distance of 20 cubits he saw the victim lady with the face upward lying on the land and the appellant was lying on her and having sexual intercourse. The other accused persons were sitting at a distance of about 3 cubits and on seeing the witnesses approaching they fled away. Appellant Adinarayana also got up and went away. They went near the victim lady and found her still lying on the ground. She was half naked and her wearing apparels were torn and the front portion of her body was exposed. She was found to be a dumb. They found injuries on her breast and chest. There was bleeding from her vagina. In the same night they complained before the B.D.O. about this act committed by appellant K. Adinarayana.
Having gone through the evidence of this witness I do not find anything material has been brought out to disbelieve his testimony. The evidence stated in the Court finds ample corroboration in the F.I.R. lodged by him. There has been hardly any effective cross-examination to disbelieve his testimony. P.W.5, the B.D.O. has corroborated the fact that the prosecution witnesses had complained during the night of occurrence itself that accused K. Adinarayana along with other accused persons had forcible sexual intercourse with the dumb woman. The evidence with regard to this incident spoken to also by P.Ws. 2, 4 and 7 corroborates the evidence of P.W.3, the informant in material particulars. The suggestion of the defence to P.W.3 that he (P.W.3) was caught red handed by the accused persons while committing rape on the victim woman in the same night is wholly unacceptable being not believable because of the very improbable nature of a case suggested. Since there is no infirmity in the prosecution evidence, the finding of the lower Court that the appellant took the victim lady by force without her consent for the purpose of committing sexual intercourse is affirmed. The torn clothes and injuries on the person of the victim lady and the manner in which she was brought to the village suggest the intention of the appellant to take the lady for the purpose of sexual intercourse. This finding is confirmed.
7. The learned counsel for appellant K. Adinarayana submitted that since the service career of the appellant would be affected, it will be proper for this Court to release the appellant under the provisions of probation of Offenders Act or Section 360, Cr.P.C. I am unable to accept this submission because the appellant has been found guilty of kidnapping a dumb lady. The misdeed cannot draw the sympathy of any one.
8. In the result, both the Government Appeal and the Criminal Appeal are dismissed.