The High Court
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THE HIGH COURT OF ORISSA AT CUTTACK CRA No.33 of 1998 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Raj Kumar Sahu @ Raj Kumar Sahoo ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Arun Kumar Patra, Advocate For the Respondent : Mr. Sarathi Jyoti Mohanty, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 12.08.2025 :: Date of Judgment: 09.09.2025 S.S. Mishra, J. The present Criminal Appeal, filed by the appellant under Section 374(2) of the Cr.P.C., is directed against the judgment and order dated 24.01.1998 passed by the learned Sessions Judge,
Legal Reasoning
Sundargarh in S.T. No.190 of 1996, whereby the learned trial Court has convicted the accused-appellant for the offences punishable under Section 454/354 of the Indian Penal Code (hereinafter ‘the Code’ for brevity) and Section 3(1)(xii) of the S.C. and S.T.(PoA) Act, accordingly, sentenced him to undergo R.I. for three months besides fine of Rs.500/- on each count, in default, to further undergo R.I. for one month for the offences under the Code and further R.I. of six months with fine of Rs.1000/- in default, to further undergo R.I. for two months for the offence under Section 3(1)(xii) of the S.C. and S.T.(PoA) Act. Prosecution case in brief: 2. The case of the prosecution, as unfolded from the records, is that on 21.08.1995, at about 7:00 A.M., the victim was asleep inside her house, while her mother was engaged in work in the bari adjoining the house. At that time, the accused entered the room where the victim was sleeping, caught hold of her hand, and thereafter seized her by the waist. When she raised a cry, the accused gagged her by pressing a cloth over her mouth, thereby preventing her from making any further noise. It is alleged that the accused then lifted her wearing apparel and had sexual intercourse with her against her will and without her consent. The victim managed to raise an alarm, upon which the accused fled from Page 2 of 13 the spot. Later, at about 10:00 A.M. on the same day, the accused again came to her house, but her mother did not permit him to enter, forcing him to leave the premises. Subsequently, at about 6:00 P.M. on the very same day, the victim went to the Nuagaon Police Out Post under Hatibari Police Station and submitted a written report before the Assistant Sub-Inspector of Police,
Legal Reasoning
Shri Anadi Charan Jena. On the basis of the said report, investigation was initiated, and the accused was charged under Sections 454 and 376 of the Code, as well as Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The accused, however, denied the allegations levelled against him and pleaded complete innocence. The defence case is one of total denial, asserting that the accused has been falsely implicated at the instance of Smt. B. Radhika, the then Superintendent of Police, Sundargarh. It is contended that at her behest, the victim subsequently made allegations of rape in her statement recorded under Section 164 Cr.P.C., even though such an accusation did not find place in the initial First Information Report lodged by her. At this stance of denial the accused faced trial. Page 3 of 13 3. The prosecution in order to bring home charges examined as many as eleven witnesses including the victim, her mother, the doctors who examined the victim, and the I.O. along with other witnesses. However, no witnesses have been examined on behalf of defence. Trial Court’s analysis of evidence and Judgement 4. The learned trial Court analysed the evidence on record in detail and returned the following findings:- “9. It is only the victim girl who had made allegation in her examination-in-chief that accused committed sexual intercourse with her against her will and without her consent. Her evidence regarding rape does not get corroboration from the evidence of her mother or any other prosecution witnesses…………” Further the learned trial Court by appreciating the evidence on record held that: - “10. From the evidence on record, it appears that P.W.1 lodged a written report at Nuagaon Police Out Post, which has been marked Ext.1. In that report, there was no allegation of rape. In that report, it was alleged that the caused entered inside the room where she had slept and caught hold of her hand and waist and when she shouted, accused went away and that subsequently accused had come again and went away. In the first report, which was lodged by the victim girl, there was no allegation regarding rape on her by the accused. In the second report (Ext.10), which was submitted by the victim on 13.9.95, it has been mentioned that the accused committed rape on her. The second report Page 4 of 13 was given on 13.9.95 and the first report was given on 21.8.1995. It also appears that her statement under section 164, Cr.P.C. was recorded by a Judicial Magistrate on 19.9.1995 and the same has been marked Ext. 2. In her statement recorded under section 164, Cr.P.C., she has stated that the accused committed rape on her. It is argued by the learned counsel for the accused that the court should not rely on the statement recorded under Section 164, Cr.P.C. as the victim made such statement being tutored by the then Superintendent of police. Smt. B.Radhika. ***** ***** ***** 12. If actually there was commission of rape on the victim as alleged subsequently by the victim in her statement recorded under Section 164, Cr.P.C. (Ext.2), and in her subsequent report (Ext.10), it is not understood as to why she did not disclose this fact at the earliest opportunity and for the first time she disclosed such a fact on 13.9.1995, about 22 days after the alleged occurrence. No satisfactory explanation has been put forward by the victim for not disclosing the fact of rape on her by the accused. For such a long period of 22 days. At the initial stage, her allegation was that accused entered inside the room, when she had slept and caught hold of her hand and waist and when she shouted the accused went away. Subsequently after twenty two days, she made a statement that accused had sexual intercourse with her against her will and without her consent. Subsequent allegation of rape does not get corroboration from the medical evidence on record. Rather the medical evidence on record clearly suggests that there was no sexual intercourse with her by any person against her, will or without her consent on the alleged date of occurrence. From the evidence of P.W.5, it has come to light that the victim girl stated before him that no sexual assault was committed on her by any person and such an endorsement has been made by the doctor (P.W.5) in his report vide Ext.3. Similarly the report of the Lady doctor (P.W.7) clearly suggests that there was no sexual assault on her private part by any person. The victim has clearly admitted in paragraph 10 of her deposition that she made statement before the Judicial Magistrate as per direction of the then Superintendent of Page 5 of 13 Police, Sundargerh, Smt.B.Radhika. So, it has come to light that victim had made statement before, the Judicial Magistrate vide Ext. 2 alleging rape on her by the accused as per direction of Smt. B.Radhika the then Superintendent of Police, Sundargarh. More over, if actually accused had sexual intercourse with her without her consent or against her will and she had struggled at the time of sexual intercourse, there must have been some marks of violence or injury on her private part or other parts of her body and absence of such mark of violence or injury on any part of her body clearly suggest that there was no rape, otherwise there must have been some marks of violence or injury on any part of her body. Moreover, the victim had not complained before her mother that the accused committed rape on her. She had stated before her mother that the accused entered inside the room where she had slept and caught hold of her hand and waist and went away when she shouted. When the victim did not complain before the doctors that she had been raped and the doctor's evidence shows absence of injuries or marks of violence on any part of her body and she did not disclose before her mother that, accused committed rape on her, the allegation regarding that rape, cannot be believed. Rather, subsequently at the instance of the investigating agency, the victim made the allegation that she had been raped about 22 days after the alleged date of occurrence. The evidence of victim (P.W.1) that she had been raped, does not get corroboration from medical evidence on record and even from her mother and as such, her evidence that accused committed rape on her appears to be not true and she made such an allegation subsequently about twenty two days after the alleged occurrence at the instance of the investigating agency and as such, prosecution case regarding rape has to be disbelieved for the reasons already stated above. Therefore, after taking into consideration the evidence on record and material circumstances of the case, I am of the view that prosecution has failed to prove its charge of rape punishable under Section 376 of the Indian Penal Code against the accused beyond any reasonable doubt.” it appears Page 6 of 13 5. Subsequently, by appreciating and analyzing the evidence brought on record by the prosecution and taking into consideration the defense plea eventually the learned trial Court recorded the guilt of the appellant by concluding as under: “14. After going through the evidence on record, and material circumstances of the case. I am of the view that prosecution has been able to prove that accused committed lurking house trespass and also outraged the modesty of a woman (P.w.1) by catching her hand and waist when she had slept inside a room. Therefore, prosecution has been able, to prove its charge under section 454 of the Indian Penal Code against the accused beyond all reasonable doubt. Similarly, prosecution has been able to make out a case under section 354 of the Indian Penal Code against the accused as he outraged the modesty of P.W.1 by catching her hand and waist while she had slept inside her house. From the evidence of P.W.10 and Ext.8, it is proved by the prosecution that P.W.1 is a member of Scheduled Tribe accused is not a member of Scheduled Caste or Scheduled Tribe. It is proved by the prosecution that accused entered inside the room, whore P.W.1 had slept and caught hold of her hand and waist and by this action, accused exploited her sexually and as such prosecution has been able to make out a case under Section 3(1) (xii) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act against the accused beyond reasonable doubt. 15. Hence on a consideration of the evidence on record and material circumstances of this case, I come to the conclusion that prosecution has not been able to prove its charge of rape against the accused beyond reasonable doubt, prosecution has been able to prove its charge under Section 454 of the Indian Penal Code and Section 3(1) (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act beyond reasonable doubt. Prosecution has also been able to prove a case under Section 354 of the Page 7 of 13 Indian Penal Code against the accused as he outraged the modesty of P.W.1 beyond reasonable doubt, when the accused has been charged for a graver offence punishable under Section 376 of the Indian Penal Code, there is no difficulty in recording conviction under section 354 of the Indian Penal Code against the accused though specifically the charge under Section 354 of the Indian Penal Code has not been framed against the accused. 16. On the aforesaid reasons, accused is found not guilty under Section 376 of the Indian Penal Code and acquitted of the said charge. Accused is found guilty under Sections 454 and 354 of the Indian Penal Code and under section 3(1) (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) act and convicted him thereunder.” 6. Aggrieved by the aforementioned judgment of conviction and order of sentence passed by the learned Sessions Judge, Sundargarh the present Appeal has been preferred by the appellant. 7. Heard Mr. Arun Kumar Patra, learned counsel appearing for the appellant and Mr. Sarathi Jyoti Mohanty, the learned Additional Standing Counsel for the State. Submissions by the learned Counsels 8. It is submitted by the learned Counsel for the appellant that the learned trial Court erred in holding the accused guilty under Sections 454 and 354 of the Indian Penal Code as well as Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. It Page 8 of 13 is argued that the offence under Section 354 I.P.C. cannot sustain, since there was no element of assault or use of criminal force by the accused, and mere allegations of holding the hand and waist of the victim do not, by themselves, establish the offence. Similarly, the charge under Section 3(1)(xii) of the SC & ST (PoA) Act is not attracted, as the essential ingredients of the said provision, namely, that the accused, being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe, used such position to sexually exploit her against her free will are wholly absent in the present case. 9. It is further submitted that while the conviction of the appellant under Section 454 of the Indian Penal Code may stand, the facts of this case call for a lenient view in the matter of sentence. Learned counsel submitted that, keeping in view the long-drawn legal process which the appellant has already gone through, he would confine his arguments only to the question of sentence and not challenge the conviction on merits. The incident took place on 21.08.1995. The appellant faced trial for about three years, and then filed the present appeal in 1998, which Page 9 of 13 has remained pending for nearly twenty-seven years. At the time of the incident, the appellant was in his mid-thirties, and today he is in his early sixties, living a settled life with his family. It is also pointed out that the appellant has no past criminal record, nor has he ever been involved in any other case. Over the years, the appellant has lived a decent life in society. Sending him to jail after such a long gap would serve no real purpose and may instead cause unnecessary hardship to him and his family. In these circumstances, it is prayed that the appellant be given the benefit of the Probation of the Offenders Act, 1958 and Section 360 of the Code of Criminal Procedure, 1973, so that justice is done without causing avoidable suffering after such a long delay. Observations and reasoning 10. On a careful examination of the evidence on record, this Court finds that the conviction of the appellant under Section 354 of I.P.C. cannot be sustained. The essential requirement under Section 354 I.P.C. is that there must be use of criminal force or assault with intent to outrage the modesty of a woman. In the present case, the allegations are Page 10 of 13 limited to the appellant having caught hold of the hand and waist of the victim. No further act of force or assault has been established by the prosecution to bring the case within the scope of Section 354 of the Code. Mere holding of the hand or waist, without more, cannot by itself establish the offence under this provision. Hence, the conviction under Section 354 of the Code is set aside. Likewise, this Court finds no material to sustain the conviction under Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The provision applies where a person, being in a position to dominate the will of a woman belonging to a Scheduled Caste or Scheduled Tribe, uses that position to sexually exploit her to which she would not have otherwise agreed. In the present case, there is nothing on record to show that the appellant held any such position of dominance over the victim or that he misused such a position for sexual exploitation. Thus, the ingredients of the offence are not established, and the conviction under this provision also cannot be sustained. Page 11 of 13 However, this Court finds that the charge under Section 454 of the Code is clearly made out. The evidence shows that the appellant entered into the room of the victim without authority and with the intention of committing an offence therein. Such conduct squarely falls within the definition of house trespass punishable under Section 454 of the Code. Accordingly, the conviction of the appellant under Section 454 of the Code is upheld. Conclusion 11. Having regard to the age of the appellant, his position in society, his clean antecedents, and the fact that the incident had taken place as far back as in the year 1995, I am of the considered view that the appellant deserves to be treated under the Probation of Offenders Act r/w. Section 360 of the Code of Criminal Procedure. 12. In such view of the matter, the accused-appellant is acquitted of the offences under Section 354 of the Indian Penal Code and Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. However, the present Criminal Appeal in so far as the conviction U/s 454 of IPC is concerned, is turned down. But instead of Page 12 of 13 sentencing the appellant to suffer imprisonment, this Court directs the appellant to be released under Section 4 of the Probation of Offenders Act for a period of three months on his executing bond of Rs.5,000/- (Rupees Five Thousand) within 15 (fifteen) days with one surety for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the appellant shall keep peace and good behavior and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of three months. 13. With the above observation, the CRA is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 9th of September 2025/ Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 15-Sep-2025 13:17:44 Page 13 of 13