The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.48 of 1996 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Bhabagrahi Sahoo @ Bhalu & another……. Appellants State of Orissa ……. Respondent -Versus- For the Appellants : Ms. Chetna Prakash, Advocate For the Respondent : Mrs. Sarita Moharana, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 02.09.2025 : Date of Judgment: 25.09.2025 S.S. Mishra, J. The present Criminal Appeal, filed by the appellants under Section 374 of the Code of Criminal Procedure, is directed against the judgment and order dated 06.02.1996 passed by the learned Assistant Sessions Judge, Boudh, in S.T. No. 1 of 1995 (arising out of S.T. No. 113 of 1994 of Phulbani District Court). By the impugned judgment, the learned Trial Court convicted the accused-appellant No.1 for the offences punishable under Sections 376/511, 457, and 397 of the Indian Penal Code. The appellant No.1 was sentenced to undergo rigorous imprisonment for seven years for the offence under Section 376/511 IPC and to pay a fine of Rs. 1,000/-, in default whereof to undergo simple imprisonment for six months. For the offence under Section 457 IPC, he was further sentenced to seven years’ rigorous imprisonment and a fine of Rs. 1,000/-, in default to undergo simple imprisonment for six months. For the offence under Section 397 IPC, the appellant No.1 was sentenced to eight years’ imprisonment and a fine of Rs. 1,000/-, in default to undergo simple imprisonment for six months. The accused-appellant No.2 was sentenced to undergo R.I. for a period of seven years and to pay a fine of Rs.1,000/- (Rupees one thousand), in default, to undergo S.I. for a period of six months for the offence under Section 457 of the IPC. The Trial Court directed that all the sentences shall run concurrently against accused appellant No.1.
Legal Reasoning
2. Heard Ms. Chetna Prakash, learned counsel appearing for the appellants and Mrs. Sarita Moharana, learned Additional Standing Counsel appearing for the State. Page 2 of 19 3. On 07.04.1994, at about 10:00 P.M., while P.W.1 Pramila Behera was inside her house at Kalikpodi-Godhipada along with a minor girl, P.W.7 Kumari Rita Samal (aged about 9 years), the accused persons flashed a torchlight towards her house. P.W.1 raised alarm, whereupon the accused persons fled away. A little later, P.W.5 Rabindra Pradhan (her halia) came to her house and, on her request, he slept in the courtyard, while P.W.1 and P.W.7 slept inside. Around midnight, P.W.1 awoke up on hearing the sound of her door. Suddenly, accused Bhalu Sahu @ Bhabagrahi Sahu entered her house, disrobed her, embraced her, and threatened to stab her with a Gupti (M.O.I) if she raised alarm. He then forcibly laid her on the floor and attempted to commit rape. When P.W.1 cried out, P.W.7 woke up. At that point, accused Bhalu dragged P.W.1 outside, where she saw accused Debaraj Pradhan standing near P.W.5 with a thenga, and another man near the back door. Bhabagrahi called Debaraj, who joined him. P.W.1 identified the person at the back door as accused Dhaneswar Sahu @ Phani of village Kanpur. Page 3 of 19 Accused Bhalu took the key from near the cot and handed it to Debaraj. Together, Bhalu and Debaraj dragged P.W.1 into another room, unlocked her box, and looted Rs. 1,800 in cash and one gold chain. Throughout, Bhalu kept threatening her with the Gupti. While retreating through the back door, P.W.1 again raised alarm. This woke P.W.5, who challenged the accused. Debaraj caught hold of P.W.5 and threatened to kill him if he shouted. The accused then fled away. Sachindra Pradhan (uncle of P.W.1) also saw the accused running away. After P.W.2 Chandra Sekhar Pradhan arrived at the house, P.W.1 lodged the F.I.R. on 14.04.1994 at 4:00 P.M. The delay was explained as due to the absence of P.Ws. 2 and 3 at the time of the incident. On receiving the F.I.R., the O.I.C., Purunakatak P.S., registered Case No. 18/94 under Sections 457/376/511/392/397/34 IPC and took up investigation. During investigation, the Gupti (M.O.I) was seized from the house of accused Bhabagrahi Sahu, and the broken tin box with Mobaj-31 lock (M.O.II) was seized from the house of P.W.1. Page 4 of 19 Upon completion of investigation, the I.O. submitted charge sheet under Sections 457/376/511/392/34 IPC. The learned S.D.J.M. took cognizance and registered the case as G.R. Case No. 116/94, which was committed to the Court of Sessions on 28.11.1994. The Sessions Judge, Phulbani, registered it as S.T. No. 113/94, which was later renumbered as S.T. No. 1/95, with charges framed under Sections 457/392/307/376/511/34 IPC. On denial of charges the accused persons faced trial. 4. At this point, it is pertinent to mention that the accused-appellant No.2 Debaraj Pradhan in the present appeal has expired on 23.09.2022 and the appeal qua him stood abated vide order dated 22.07.2025. The present appeal is considered for the accused-appellant No.1, Bhabagrahi Sahoo alone. 5. The prosecution, in order to substantiate its case, examined thirteen witnesses. P.W.1, Pramila Behera, was the informant and victim of the alleged occurrence. P.W.2, Chandra Sekhar Pradhan, the elder uncle of P.W.1, and P.W.3, Tapaswini Pradhan, wife of P.W.2, were not present in the village at the time of occurrence. P.W.4, Nirasa Pradhan, Page 5 of 19 the aunt of P.W.1, resides in the adjacent house but did not witness the incident. P.W.5, Rabindra Pradhan, was the halia (servant) of P.W.1, who had slept in her courtyard on the relevant night. P.W.6, Dambara Samal, a neighbour of P.W.1 and father of P.W.7, Kumari Rita Samal, corroborated that his daughter had slept with P.W.1 on the night of the alleged occurrence. P.W.7, Rita Samal, a child witness, had in fact accompanied P.W.1 during the incident. P.Ws. 8 to 11 (Prakash Samal, Binod Samal, Sanjay Dehuri, and Dambarudhar Mallick) were seizure witnesses, though except P.W.8, the others expressed ignorance about the alleged seizures. The investigation of the case was carried out by P.W.12, Santanu Kumar Padhi, who submitted the charge sheet, and P.W.13, K. Narayan Rao was another Investigating Officer. 6. The learned trial Court, by heavily relying upon the evidence of P.Ws. 1, 5 and 7, arrived at a conclusion that the prosecutrix’s (P.W.1) version is untainted. Hence, reflects the ring of truth. Accordingly, found the appellants guilty of the offences as mentioned above and accordingly sentenced them. The appreciation of the evidence by the learned trial Page 6 of 19 Court could be largely seen from paragraph-7 of the impugned judgment, which reads as under: “7. Let me scrutinise the evidence of P.Ws. P.Ws.1,7 and 5 in order to find out as to how far the prosecution has been able to prove the charge against the accused persons. On scrutiny of the evidence of P.W.1 Pramila Behera it is disclosed that on the occurrence night at about 10 P.M. the accused Bhabagrahi Sahu, Dhaneswar Bhoi and Debaraj Pradhan of village Patlipada came near her house and they focused torch inside her house and thereafter they went away. P.W.1 woke up from sleep and accused persons had already left through Danda. When P.W.1 returned and closed the door and slept. After half an hour her halia Rabi Pradhan came and P.W.1 opened the door. Rabi Pradhan slept on a cot on a verandah near her bed-room P.Ws. 1 and 7 slept inside the room. At about mid night the accused persons came through bari. It is disclosed from the evidence of P.W.1 that accused Bhabagrahi Sahu entered inside her bed room and slept over her. P.W.1 deposed that “BHABAGRAHI SAHU MO UPARE MADI BASILA". Further it is disclosed from the evidence of P.W.1 Pramila Behera that accused Bhabagrahi Sahu caught hold of her breasts, squeezed them. P.W.1 raised hulla. Accused Bhabagrahi Sahu threatened her to stab her by knife if she would raise hullah. Further it is disclosed from the evidence of P.W.1 that accused Bhabagrahi Sahu dragged her from the cot to the floor of the bed room and lifted her wearing saree and at that time P.W. 7 Rita Samal woke up. It is also disclosed from the evidence of P.W.1 Pramila Behera that accused Bhabagrahi lifted her to verandah and P.W.1 saw that accused Debaraj was standing holding a thenga near the head of Rabi Pradhan, who was sleeping on a cot Accused Debaraj guarded P.W.1. The bunch of key had fallen inside her bed room. Accused Bhabagrahi Sahu collected the bunch of key from her bed room and opened the lock of another room and forcibly opened the box with the help of knife and took away Rs.1800/- cash and one golden necklace from the box after breaking open the box. P.W.1 followed them and called her halia P.W.5, she woke up from sleeping and caught hold of accused Debaraj Pradhan. But accused Debaraj Page 7 of 19 Pradhan managed to free himself from the clutch of P.W.5 and fled away. This witness P.W.5 has been cross-examined at length P.W.l is the victim woman. The evidence of victim woman is clear and her elaborate cross-examination has not brought any crack in it. P.W.7 is Kumari Rita Samal, who was sleeping with P.W.1. She is a child witness, who is aged about 9 years and she has not seen the occurrence since she was sleeping in that night. P.W.5 Rabindra Pradhan is the halia of P.W.1. He is a post- occurrence witness who woke up hearing hullah of P.W.1. He caught hold of accused Debaraj Pradhan who dealt a push to p.w.5 and fled away. P.W.1 had narrated the occurrence to p.w.5. P.W.8 had disclosed about police having seized a broken tin box from the pinda of the house of p.w.2 on 14.4.94 night. P.W.9 denied about the seizure of anything from the house of p.w.2. P.Ws.10 and 11 denied about the seizure of anything from the house of accused Bhabagrahi Sahu on 15.4.94 at 1.30 P.M. The I.0. had disclosed about having seized the Gupti under seizure list Ext.3/2 from the house of accused Bhabagrahi on 15.4.94 at 1.30 Ρ.Μ. The I.0. P.W.13 have also disclosed about the seizure of tin box under seizure list Ext.2 M.O.I is the Gupti seized by I.O. and M.O.2 It is the tin box seized by I.0. He is an official witness having no enemity with accused persons. I find no reason to disbelieve him on the score of seizure of M.O.I & II. On behalf of the accused D.W.1 Sri Bhagirathi Behera is examined, He disclosed in his evidence that the accused persons have not committed any such acts on the occurrence night and that because accused Bhabagrahi Sahu refused to give grocery articles to p.w.2 on credit basis, therefore dispute arose between accused Bhabagrahi Sahu and p.w.2. This witness D.W.1 resides in Sadak sahi, while the house of P.W.1 in situated in Godhipada, another sahi, D.W.1 is not a ward-member and member of the village. The evidence of D.W.1 does not appear to be true and appears to be designed primarily to gave the accused persons from criminal liability. D.W.1 has no knowledge about the occurrence which is quite but natural because he resides in Sadak Sahi of the village whereas the house of p.w.1 is situated at Godhipada. Therefore ordinarily D.W.1 would not have knowledge about occurrence which took place in the mid-night.” Page 8 of 19 7. Although perusal of the evidence of P.W.1, the prosecutrix makes it clear that there is no allegation of penetrating sex being committed by the present appellant no.1. But the learned trial Court under the aid of Section 511 of the IPC opined that this is a case of attempt to commit the crime under Section 376 of the IPC. The learned trial Court, while arriving at the said conclusion had recorded as under: “15. Undisputedly P.W.1 had no animosity with accused Bhabagrahi Sahu and Deba. Can it be said that a woman is only to be believed after she is raped and not after she has been disrobed, but successfully warded off the attempt to rape. In the tradition bound conservative Indian Society. It is incredible to think that a woman would falsely state that she was disrobed and attempts were made to rape her, which in view of the intervening circumstances could not materialize. True it is, possibility of false implication is not a myth. In some cases it may be reality. On the evidence of the victim lady herself conviction can be maintained if it has a ring of truth. The evidence of victim lady P.W.1 is clear and her elaborate cross- examination has not brought any crack in it.” 8. The appellants are seriously aggrieved by the findings recorded by the learned trial Court which led to their conviction and sentence and accordingly, they have filed the present appeal. 9. Since the appellant no.2 has died during pendency of the appeal and the appeal qua him stood abated vide order dated 22.07.2025, the evidence vis-à-vis appellant no.1 is being analysed herein below. Page 9 of 19 10. In this case, the incident alleged to have taken place on 07.04.1994 at 10 P.M. However, the F.I.R. has been registered after one week. Only the explanation which is coming from the record is that P.W.2, the uncle of the victim was not available in the village once he came the F.I.R. was registered. The explanation so offered is not sounding logical. Be that as it may, due to the delayed registration of the F.I.R., the seizure was also affected on 15.04.1994. One gupti was alleged to have been recovered from the possession of the appellant. However, the witnesses to the said seizure namely P.W.10 and P.W.11 have completely denied of having any knowledge about such recovery. Therefore, the recovery of gupti is coming under the cloud of doubt. More startling fact emerging from the record is that the prosecutrix in the present case has clearly refused for medical examination. Rather, while refusing to medical examination, she has stated that she has suffered no bodily injury or pain which requires for medical examination. The refusal on the part of the prosecutrix to medical examination has created doubt to her claim that she was dragged, scuffled and forcefully handled. Page 10 of 19 11. In the present case, the alleged incident appears to have been witnessed by P.W.5 and P.W.7. P.W.7 was the child witness, who was allegedly sleeping with the prosecutrix at the time of the incident has not supported the prosecution case. Hence, she was declared hostile, despite sustained cross-examination by the prosecutor, nothing could be yielded from her. P.W.5 the other witness, who was present at the spot has stated as under: “I returned to the house of P.W.2 at about 10 P.M. night. P.W.1 told me that Bhalu @ Bhabagrahi Sahu along with other two accused persons had come and focused torch light towards the house of P.W.2 and went away. P.W.1 and Rita Samal slept inside the room while I slept on the Varanda (pinda) outside the room. At about mid-might P.W.1 shouted at that time accused Bhalu Sahu and other accused had fled away. I woke up and caught hold of accused Debaraj Pradhan, accused Debaraj Pradhan gave me a push and fled away. P.W.1 told me that accused Bhalu Sahu (Bhabagrahi) and Deba threatened her by knife and lifted her saree and made ‘atyachara’ to P.W.1 by threatening her by showing knife and intimidating her. P.W.1 also told me that they removed cash and gold necklace from a box and took it with them. Then I went and told about the incident to Sachindra and his wife, who told us that they have seen the accused persons running away by the side of the house. Then I told P.W.1 to lodge F.I.R. at P.S. She told me that on return of P.W.2 to the house, we would lodge F.I.R. at P.S.” Reading of his evidence makes it clear that he had, in fact, only witnessed the first part of the incident wherein the accused persons had Page 11 of 19 only flashed the light towards the house of P.W.1 and thereafter all the accused persons have left the place and he went to sleep. The rest part of the event was not witnessed by him. All other accused persons were post-occurrence witnesses or deposed as hearsay witness. Therefore, the only witness remains to be evaluated is that of the prosecutrix evidence. The prosecutrix, P.W.1 in her testimony has stated as under: “At about 10 P.M. night accused Bhabagrahi Sahu, Dhaneswar Bhoi and Deba of village Patlipada came near her house and they focused torch light inside our house and thereafter they went away. I woke up from sleep and saw that accused persons had already left through ‘Danda’. Then I returned and closed the door and slept. After half an hour our Halia Rabi Pradhan of village Kusunjuli came. On his call, I opened the door and I told him that these three accused persons had come earlier. So Rabi Pradhan slept on a cot on the Varandah in front of my bed room. Rabindra Pradhan lighted a lamp and slept. We slept inside the room. At about mid-night the accused person came through Bari door. Accd. Bhabagrahi Sahu entered inside my bed room and slept over me (Bhabagrahi Sahu mo upare madibasila). Accd. Bhabagrahi Sahu caught hold of my breasts and squeezed them. I raised hulla. Accused Bhabagrahi Sahu threatened me to stab me by knife in case I would raise hulla. Accused Bhabagrahi Sahu dragged me from the cot to the floor of the bed room. Accused Bhabagrahi Sahu lifted my saree, which I was wearing. At that time, Rita Samal woke up. I told Rita Samal that her father’s friend (accused Bhabagrahi) was indulging in such activities with me and to tell this fact to her father if required. Rita Samal told accused Bhabagrahi that she would report this fact to her father. Accd. Bhabagrahi lifted me to the verandah. I saw accd. Deba standing with a thenga near the head of Rabi Pradhan, who was sleeping on a cot. Accused Deba guarded Page 12 of 19 me, the bunch of key had fallen inside my bed room, accused Bhabagrahi Sahu took the bunch of key from my bed room and opened the lock of another room and he forcibly opened the box with the help of a knife. Rs.1800/- cash and a gold necklace was kept inside that box. Accd. Bhabagrahi Sahu after breaking open the box which was kept inside that room decamped with gold necklace and a sum of Rs.1800/- I followed them and called Rabi (our halia) Rabi woke up from sleep and caught hold of accused Debaraj Pradhan. But accd. Debaraj Pradhan managed to free himself from the clutch of Rabi and fled away. My uncle Sachindra Pradhan and aunt Nirasa Pradhan were sleeping on the adjacent room of the house. I narrated the occurrence to them.” 12. From the evidence of P.W.1, which is reproduced above, it is evident that she had alleged that the appellant had dragged her from the cot to the floor. The house is consisting of six rooms. Out of which two rooms were occupied by Sachindra and his wife. During the occurrence, the victim raised hulla twice in the mid-night but none came to her rescue. The neighbours i.e. P.W.6 and one Bhujanga Samal had also not come out despite hulla. Her version also sounds unacceptable as the accused came and flashed the torch inside her house, however, what prevented her to bolt the door from inside in the matter of unnatural behaviour. Even having apprehended danger at 10 P.M., when she apparently found three people flashing torch light into her bed room, she kept her door opened and went to sleep which sounds quite unacceptable Page 13 of 19 and beyond comprehensible. She has also improvised her version in her statement recorded under Section 164 of the Cr. P.C. She had stated that both appellant no.1 and Debaraj Pradhan had committed sexual assault. Having making explicit allegation against the appellants and other accused persons, she has deliberately refused to be medically examined stating that she has not sustained any injury or not suffering from any pain. However, the learned trial Court by heavily relying upon her statement, convicted the appellant for the offence under Section 376 of the IPC read with Section 511 of the IPC. The conviction is based upon completely circumstantial evidence and not corroborated by the medical evidence which placed the most crucial role in the cases of present nature. In this regard, the appellant has relied upon the judgment in the case of State of Himachal Pradesh vs. Rajesh Kumar wherein it is held that none allowance of medical examination draws a negative inference against the victim. 13. Let’s examine the evidence of P.W.2, the uncle of the victim and the informant in the present case who had deposed as under: Page 14 of 19 “Since P.W.1 was alone so she had called one small girl Rita Samal of neighbourhood to sleep with her. At about 10 P.M. on 7.4.94, Bhabagrahi @ Bhalu and Deba Pradhan and Dhanu came near our house and focused torch light towards our house, by sitting in our brother’s house. My brother and his wife told them that my mother was absent in my house and not to focus torch light. Danda Jatra was being performed in our village then. These accused persons went to see Danda Jatra. At about mid-night, these accused persons again came to my house through the Bari door. P.W.1 told me that Dhanu guarded near the door and that accused Bhabagrahi Sahu @ Bhalu entered inside the bed room and forcibly squeezed her breast and lifted her saree and forcibly had sexual intercourse with her. Accused Bhabagrahi had threatened P.W.1 by holding a knife and threatened P.W.1 that in case she would sought and tell about the incident to any one, he would kill her. P.W.1 told me that thereafter accused Bhabagrahi dragged her to the floor towards the Varandah.” P.W.2 though a hearsay witness has improvised the narrative of the prosecution story adding several other factors, which are not found mentioned in the evidence of P.W.1. P.W.1 has not made any allegation regarding any sexual intercourse. At the same time, it was not the case of the prosecution that the appellant was holding a knife. However, these elements are being introduced by P.W.2. The grand-mother of P.W.1, i.e. p.w.3 was examined. However, her testimony has not been a great help to the prosecution, as she has stated that she was not present at the time Page 15 of 19 of the occurrence, as she was travelling to Phulbani, whereas P.W.4, the neighbor has stated as under: “The occurrence took place in Chaitra month in 7th day. On the occurrence night P.W.3 had gone to Phulbani. Rita Samal and P.W.4 were sleeping in the house of P.W.2. I and my husband were in our room. On the occurrence night, accused persons had gone to the house of P.W.1. My husband told them that, no male members were present in the house he forbade the accused persons not to go to the house of P.W.1 so the accd. persons went away. On the next day morning P.W.1 narrated the incident before me.” The said witness (P.W.3) has only narrated regarding the first part of the incident. It appears that the subsequent part of the incident was not told to her by P.W.1, which creates further doubt in the prosecution version. 14. P.W.6 is the father of the child Rita Samal, P.W.7, who was sleeping with the victim on the date of the incident. He has confirmed the fact that Rita Samal was indeed sleeping on that night along with P.W.1. However, when Rita Samal was examined as a child witness, being P.W.7, she has completely expressed her ignorance about the incident. The evidence as discussed above creates a dent in the entire prosecution story. As such, creates serious doubt. Page 16 of 19 15. The Hon’ble Supreme Court, in a recent judgment in the case of The State of Himachal Pradesh vs. Rajesh Kumar @ Munnu, 2025 INSC 331 has held as under: “10. The afore-extracted portions make it amply clear that the prosecutrix and her parents themselves never fully co-operated with the medical staff, thereby adversely impacting the credibility of their version of events. It is a well-settled proposition of law that non allowance of medical examination by an alleged rape victim raises negative inferences against them. We cannot ascribe any the good reason complainants their contradictory stances before the Court. We are further doubtless in this regard as the High Court, while discussing the prosecutrix’s testimony, has come to the invariable conclusion that she was not mentally unsound – given that she was able to clearly comprehend the question and answer during the cross-examination.” the complete to the authorities, apart lack of assistance to tendered from that 16. Similar view had already been expressed by the Hon’ble Supreme Court in many other judgments. Relying upon the aforementioned principle of law, learned counsel for the appellants submitted that this is a case, where the appellant No.1 is entitled to acquittal. 17. I have carefully analysed the evidences of all the witnesses conjointly. The evidence of the prosecutrix (P.W.1) is not drawing corroboration from the evidence of the other witnesses. However, the reasonings recorded by the learned Trial Court to rely upon the prosecutrix evidence to the extent that the appellant no.1 has entered into Page 17 of 19 her house on an attempt to steal the articles and in the process, physically man-handled her, cannot be doubted. But in the absence of any evidence regarding the sexual intercourse and any physical harm being done to the P.W.1, by invoking Section 511 of the IPC convicting the appellants for the offence under Section 376 of the IPC, may not be safe. 18. In so far as the other offences are concerned, the prosecution has miserably failed to establish the same beyond all reasonable doubts. Therefore, the appellant no.1 is entitled to acquittal on those counts. However, the appellant no.1 although is not liable for the offence under Section 376/511 of the IPC, as apparently the appellant no.1 has outraged the modesty of P.W.1. Therefore, while acquitting the appellant no.1 for all other offences, I found the appellant no.1 guilty for the offence under Section 354 of the IPC and on that count, sentence him to undergo R.I. for two months and to pay fine of Rs.20,000/- (Rupees twenty thousand), in default, to undergo further R.I. of one month. The period already undergone by the convict shall be set off, as per the provisions of Section 428 of the Cr. P.C. The fine amount to be Page 18 of 19 deposited shall be remitted to P.W.1, the victim, as compensation in accordance with Section 357 of the Cr. P.C. 19. Accordingly, the Criminal Appeal is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 25th Day of September, 2025/ Subhasis Mohanty Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 16-Oct-2025 15:04:41 Page 19 of 19