The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.79 of 1999 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Bijay Chhura ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Debi Prasad Dhal, Senior Advocate along with Mr. Adish Jena, Advocate For the Respondent : Ms. Suvalaxmi Devi, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 11.11.2025 :: Date of Judgment: 18.11.2025 S.S. Mishra, J. The present Criminal Appeal, filed by the sole appellant- Bijay Chhura under Sections 374(2) of the Cr.P.C., is directed against the judgment and order dated 26.02.1999 passed by the learned Additional Sessions Judge, Titilagarh in Sessions Case No.134/6 of
Legal Reasoning
1997-98 arising out of G.R. Case No.229 of 1996, whereby the present appellant has been convicted for the offence under Sections 451/354 of I.P.C. and on that count, he was sentenced to undergo R.I. for one year and to pay a fine of Rs.500/-, in default, to undergo S.I. for one month for the offence under Section 451 of I.P.C. and R.I. for one year for the offence under Section 354 of I.P.C. and the sentences were directed to run concurrently. 2.
Legal Reasoning
Heard Mr. Debi Prasad Dhal, learned Senior Counsel appearing for the appellant and Ms. Suvalaxmi Devi, learned Additional Standing Counsel for the State. 3. The prosecution case, in brief, is that on 01.09.1996 at about 11.00. A.M., during the absence of her parents, the prosecutrix (P.W.9), aged about 13 years, was present in her house along with her younger sister (P.W.8), aged about 7 years, and her cousin sister Chandrika, aged about 5 years. It is alleged that at that time, the accused-appellant, who belongs to the same village, entered the house, directed P.W.8 and Chandrika to leave, and thereafter dragged the prosecutrix (P.W.9) into a room and gagged her mouth, undressed her and committed rape on her and fled away threatening her not to disclose the incident. Upon the Page 2 of 16 informant’s return to the house at about 1 P.M., she was informed about the incident by the prosecutrix and P.W.8. On the verbal report of the mother of the prosecutrix, Sindhekela P.S. Case No.34 of 1996 was registered. The matter was duly investigated. From the spot, samples of plain earth and earth stained with semen were collected. From the house of the prosecutrix, her torn frock, chadi, and a piece of undergarment (lenguti) which she had been wearing at the time of the incident and which bore certain stains were seized. From the accused, the lungi he had worn during the incident was also seized. Both the prosecutrix and the accused were medically examined. The seized articles, along with the collected semen sample of the accused and the vaginal swab of the prosecutrix, were sent for chemical examination. Upon completion of investigation, the accused was charge-sheeted under Sections 452/376 of I.P.C. 4. Out of eighteen charge-sheeted witnesses, the prosecution in order to prove its case examined as many as eleven witnesses. Out of whom, P.W.10 is the mother of the prosecutrix and the informant of the case. Page 3 of 16 P.W.9 is the prosecutrix, P.W.8 is the younger sister of the prosecutrix and an eye witness. P.Ws.1 and 2 were the aunt and paternal uncle of the prosecutrix and also the post-occurrence witnesses. P.Ws.3 and 4 were the two co-villagers of the parties and were the witnesses to the village meeting on the issue. P.W.5 was a laboratory technician of Sub- Divisional Hospital, Titilagarh whereas P.W.6 was also a co-villager of the parties. P.W.7 was the Police Constable and P.W.11 was the then Officer-in-Charge of Sindhekela P.S. and Investigating Officer of the case. On the stance of complete denial and claim of trial, the accused- appellant was put to trial. 5. The accused-appellant stood charged under Section 452/376 of I.P.C. However, the learned trial Court disbelieving the evidence of the witnesses and faced trial, acquitted the appellant for the offence under Section 376 of I.P.C. and convicted him for the offence under Section 354 of I.P.C. The learned trial Court inter alia recorded as follows:- “In the instant case accused, aged about 20 years, of good physique committed sexual intercourse on the prosecutrix, a minor girl, Page 4 of 16 against her resistance for about 5 minutes having ejaculation of both on the earthen floor as in the evidence of prosecutrix. But no injury has been detected on medical examination either on prosecutrix or on the accused. Coming in contradiction with her medical report evidence of the prosecutrix that she has sustained injuries on her chest and bleeding injuries on her private part, buttock and thigh has become unacceptable. For that reason also evidence of p.w.10, mother of the prosecutrix of her noticing nail marks on the breast and scratch marks on the buttock of the prosecutrix is also doubtful. On chemical examination vide Ext.7, C.E. report no semen has been detected in the collected vaginal swab of the prosecutrix though it is in the evidence of the prosecutrix that accused had ejaculation and doctor noticed stain of semen on her private part and it is the evidence of p.w.10, that semen stain was on the body of the prosecutrix. On chemical examination of frock M.O.II of the prosecutrix that she had put on at the time of incident as is in the evidence was found to have contained a few small patches of semen but same could not be utilised for comparison for deterioration. Though it is the evidence of P.W.10 that the seized chadi-M.O. I that the prosecutrix had put on at the time of incident was also stained with blood and semen but nothing so has been detected on chemical examination. Also no semen has been detected from seized earth and seized Lungi of the accused, that lungi was put on by the accused at the time of alleged incident as is in the the seized Page 5 of 16 evidence of p.w.1l, the I.O. To add when the prosecutrix has breathed to have washed M.O.I Chadi and M.O.II. frock before handing over the same to police, it is the evidence of p.w.8 her sister that those were not washed and it is the evidence of her mother P.W.10 that all through prosecutrix had put on those till seizure of the same. the evidence of From above, the only irresistible conclusion is the prosecutrix on that commissions of rape on her at that hour incised her house by the accused not to be accepted as gospel truth. But her evidence that at the relevant time accused had done some act amounting to outrage at her modesty inside her house is unamail and her this evidence has found corroboration from that of p.w.8.” By relying upon the evidence of P.Ws.2, 9, 10 and 11 and the exhibits, the learned trial Court convicted the appellant for the offence under Sections 451/354 of I.P.C. inter alia recording the following findings:- “It is examination-in-chief of informant-P.W.10 that at about 5 P.M. on the very day of the occurrence going to P.S. with P.W.2 and 9 she presented her written report scribed by an advocate at Sindhekela on which P.W.2 had not signed and few hours after submission of her written report police prepared a document on which she gave her LTI and P.W.2 signed. On Page 6 of 16 the point it is the evidence of P.W.2 that not P.W.10 but he presented his written report scribed at Sindhekela containing his signature and LTI. of P.W.10 whereafter police prepared another document in his presence on which he signed and P.W.10 gave her LTI. But it is the evidence of the I.O. P.W.11 that on 1.9.96 at 5 PM at the P.S. reducing the verbal report of p.w.10 into writing he treated the same as FIR Ext.1/1. While denying the defence suggestion that p.w.10 had lodged her written report scribed by an advocate and Ext.1/1 is subsequent to that written report. Ext.1/1 is anti-dated and prepared in suppression of the original FIR. This I.O. while has breathed to have despatched the FIR. To the court before proceeding to the spot on 1.9.96 but not disclosing the statement of the prosecutrix and p.w.2 recorded by then while denying the defence suggestion that he had not sent the FIR to the court on 1.9.96. The FIR has been lodged in the evening at the P.S. on 1.9.96 and has been received in the court on 2.9.96 sent through special messanger, distance between that two places being about 30 K.Ms. as is in the evidence of the I.O. but nothing wrong to be sensed when FIR might not have been placed before the learned S.D.J.M. on the night of 1.9.96 and for that the proposition of law set down in the case has no bearing to the case in hand same standing on a different footing. However evidence of P.Ws.2 and 10 on submission of a written report to the police prior to lodging of FIR Ext.1 would have casted the prosecution had they not been illiterate Page 7 of 16 rustic villagers brought to witness box about two and half years after the alleged incident and evidence of p.ws 8 and 9 held not acceptable on outraging of modesty to the victim by the accused inside her house, fact they have deposed with all simplicity and innocence. It may be noted here that though p.w.9 was little of derailed mind she had not given irrational answers, of course not free from exaggerations, so as to discard her testimony. 10. The only chapter for discussion left is investigation which is in the evidence of p.w.11 the I.O. that on the FIR. Ext.1/1 he registered Sindhekela P.S. No.34 dtd. 1.9.96, examined the informant and the prosecutrix visited the spot, prepared spot map Ext.6, from the spot from the inner room of the house made seizure of some earth stained with semen and some sample earth under seizure list-Ext.3, on production by the informant made seizure of her black nylon chadi M.O.I; one orange colour printed frock- M.O.II and a piece of white cloth- M.O.III suspecting the same to have contained semen, then put on by the prosecutrix at the time of incident under seizure list-Ext.4, examined the witnesses, searched for the accused, but he had absconded, sent the prosecutrix for her medical examination, on 5.9.96 arrested the accused from village- Arsatula about 6 K.Ms away from the spot, from his possession seized stripe lungi-M.O. IV that he had put onat the time of incident under seizure list Ext.5, sent the accused for his Page 8 of 16 the incriminating articles medical examination, made seizure of collected vaginal swab of the prosecutrix and semen and public hair of the accused under seizure list- for Ext.2, sent chemical examination and on completion of investigation placed C.S. against the accused on 19.3.97. His evidence has been ratified on seizure under seizure list-Ext.2 by P.W.2, under seizure list-Exts.3 and 4 by P.W.6 and under seizure list-Ext.5 by P.W.7.” 6. Being aggrieved by the judgment of conviction and order of sentence passed by the learned Additional Sessions Judge, Titilagarh, the present appeal has been preferred by the appellant. 7. Mr. Dhal, learned Senior Counsel appearing for the appellant submitted that although this is a case, the learned trial Court has disbelieved the version of P.W.9, the prosecutrix and P.Ws.8 and 10, the mother and the younger sister of the prosecutrix while analyzing the medical evidence but regard being had to the fact that the occurrence had taken place way back in the year 1996, he would confine his argument to the quantum of sentence alone. He submitted that the appellant appears to have been falsely implicated as could be gathered from the statement of the accused recorded under Section 313 Cr.P.C. He further submitted Page 9 of 16 that at the time of incident, the appellant was twenty years of age and at present he is forty-nine years of age. The appellant has already undergone custody for about fifteen days. Therefore, a lenient view should be taken against him and sentence may be modified to the period the appellant has already undergone. 8. I have analysed the evidence on record in detail. The learned trial Court while recording the evidence of the victim (P.W.9) has found that the victim is an idiot. However, reading of the evidence of the victim reveals that she has narrated the incident in very minutely detail. In her examination-in-chief, she has stated as under:- “2. About four years back on one Sunday at about 10 A.M. while I myself, my sister-P.W.8 and my cousin sister-Chandrika younger to P.W.8 were in our house, then my mother had been to work, we talking means, the accused entering inside our house sat on cot. The accused dragging me took me inside a room of my house, made me lie on the ground, made me naked, came over me and committed rape on me. Accused asked me not to disclose the incident to my parents. I had struggled to escape. My mouth was gagged. I narrated the incident to my mother, my elder mother and others.” Page 10 of 16 In the cross-examination, P.W.9 further detailed out the incident and stated that she had sustained injury on her chest and bleeding injury on her private part, which the doctor had examined on police requisition. She has also stated that the doctor had examined twice. In paragraph-8 of the cross-examination, she further elaborated the incident inter alia stating as under:- “8. Taking inside the room accused closed the door. In his left hand with a piece of cloth accused gagged my mouth throughout the incident. I could not talk and shout when my mouth was gagged. Accused had intercourse for about 5 minutes. Accused had ejaculation. I also had ejaculation. Doctor saw stain of semen on my private part.” This version of the prosecutrix (P.W.9) is also reiterated by her mother (P.W.10). The said witness in her examination-in-chief has stated as under:- “2. About three years back in the month of Sravana on one Sunday my husband had been to Jharsuguda and I had been to work, then only P.Ws.8 and 9 and small child named Chandrika were in our house. Around noon on my return to house I found P.W.8 crying in front of the house and P.W.9 was crying inside our house sitting on a cot. On my query first P.W.8 told that accused entering inside the house committed rape on P.W.9. On Page 11 of 16 the the incident I called my query P.W.9 told that while she was taking meals accused dragging her inside a room committed rape on her and she was getting pain on her body and accused committed rape on her making her lie on the ground. I cried hearing which villagers assembled there to whom P.W.9 narrated local Gramarakhi who sat with the villagers in a meeting where accused and his family members were called but they did not come. So the villagers advised to report police about the incident. I presented my written report containing my L.T.I. at the P.S. at 5 P.M. Kalia Chhura, elder brother of my husband who had accompanied to the P.S. also signed on the written report. Police made seizure of earth and wearing apparels of P.W.9 those she had put on at the time of incident. P.W.9 was medically examined on police requisition. M.O.I is the Chadi, M.O.II is the frock and M.O.III is a piece of cloth those P.W.9 had put on at the time of incident which the police seized.” In the cross-examination, P.W.10 has stated that P.W.2-Kalia Chhura had accompanied them to the hospital. Her daughter (P.W.9) had nail marks on her breast and scratch marks on her buttock. Semen stains on her body was also found. She also stated that the wearing apparels of the prosecutrix were seized by the police which are M.O.I and M.O.II. She has further stated that the wearing apparels of her daughter were not washed before handing over to the police. Page 12 of 16 P.W.8 is the younger sister of the prosecutrix. She in her examination-in-chief has stated as under:- “2. About 3 years back on one Sunday during transplantation season at about 11 A.M. or 12 Noon while I myself, prosecutrix and one Chandrika my cousin sister were in our house, my father away to Jharsuguda and two others away to work, taking our meals accused coming inside our house sat on a cot. Accused then drove us from our house, dragged the prosecutrix inside a room of our house holding her hand and committed rape on her. Then the prosecutrix was struggling and shouting „Chadi De, Chadi De‟. Thereafter accused came out of our house and fled away. I found the prosecutrix crying lying on the ground. She told about the overt act committed to her and to report the matter to her mother. On return of our mother at about 1 P.M. we both narrated the incident to her. Our mother called Jhankar and villagers but only Jhankar came. Jhankar called the accused and his family members who did not come. I myself and the prosecutrix narrated the incident to villagers. At the time of the incident none else was there.” P.W.8 in her cross-examination further also elaborated the incident. She has stated that the prosecutrix has not washed her wearing apparels before the same were seized. She has, however, stated that there was no blood stain in the clothes. Page 13 of 16 The prosecutrix (P.W.9) was examined by the doctor. Although the doctor who examined the prosecutrix has not deposed before the Court, however, the medical examination documents have been brought on record as Ext.9. The doctor, who has examined the prosecutrix, has answered five pointed questions. The questions are:- “(1) the age of the victim girl; Ans:- Age of the victim:- opinion resume till x-ray advised. Elbow jt., wrist jt., hip joint. Patient did not turn-it up for x-ray. (2) Whether she is in capable enough for any sexual intercourse? Ans:- Yes (3) Whether there is in any sign and symptom of recent sexual intercourse on her? Ans:- No (4) Whether there is any injury on its private parts? Ans:-No (5) Whether she is suffering from any venereal disease? Ans:- Clinically not detected.” 9. The narration of the events by the prosecutrix (P.W.9), her mother (P.W.10) and her younger sister (P.W.8) to some extent is negated by the medical evidence. The learned trial Court has analysed the evidence of the aforementioned witnesses vis-à-vis the chemical examination report (Ext.7) and the medical evidence of the prosecutrix (Ext.9). The learned Page 14 of 16 trial Court arrived at a conclusion that the prosecution version emanating from the evidence of P.Ws.8, 9 and 10 is not believable. Hence, declaring them untrustworthy, then recorded the findings as has been reproduced above. On the basis of such findings, the appellant has been acquitted for the offence under Section 376 of I.P.C. However, the reasoning on the basis of which the conviction recorded by the learned trial Court against the appellant for the offence under Section 451/354 of I.P.C., sounds logical and supported by the evidence. Therefore, I am of the view that the judgment of the learned trial Court is not called for any interference. 10. Coming to the submission of the learned Senior Counsel for the appellant regarding the quantum of sentence, I am of the view that the submission made by him deserves merit. Accordingly, while confirming the conviction recorded by the learned trial Court for the offence under Section 451/354 of I.P.C., I modify the sentence of one year to that of the period the appellant has already undergone. However, the fine amount as imposed by the learned trial Court, i.e., Rs.500/- is enhanced Page 15 of 16 to Rs.5,000/- (rupees five thousand), in default of which, he shall undergo R.I. for two months. The fine amount to be deposited by the appellant within one month shall be disbursed to the victim in accordance with the provision of Section 357 Cr.P.C.
Decision
11. Accordingly, the CRA is partly allowed and disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 18th November, 2025/ Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 20-Nov-2025 10:36:13 Page 16 of 16