The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.01 of 1998 (In the matter of an application under Section 374(2) read with Section 382 of the Criminal Procedure Code, 1973) Ramesh Chandra Mahato ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Ms. Kirtika Banarjee, Advocate on behalf of Mr. S. K. Dash, Advocate For the Respondent : Mr. Ashok Kumar Apat, AGA CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 10.07.2025 :: Date of Judgment: 18.07.2025 S.S. Mishra, J. The present Criminal Appeal, filed by the appellant under Sections 374(2) read with Section 382 of the Cr. P.C., is directed against the judgment of conviction and order of sentence dated 12.12.1997 passed by the learned Additional C.J.M.-cum-Assistant Sessions Judge, Rourkela in S.T. Case No.30/17 of 1997, whereby the learned trial Court has convicted the appellant for the offences under Section 376/307 of I.P.C. and sentenced him to undergo R.I. for seven years for the offence under Section 376 of I.P.C. and pay a fine of Rs.20,000/-, in default, to undergo further R.I. for two years. The appellant has been further sentenced to undergo R.I. for five years and to pay a fine of Rs.10,000/-, in default, to undergo R.I. for one year for the offence under Section 307 of I.P.C. 2.
Legal Reasoning
Heard Ms. Kirtika Banarjee, learned counsel for the appellant and Mr. Ashok Kumar Apat, learned Additional Government Advocate for the State. 3. The prosecution's story in terse and brief is that:- (a) On 24.09.1996 at afternoon, the victim (P.W.9) being daughter of (P.W.6) Rajendra Mahato, went to take bath in a well near a paddy field. The accused-appellant came to her and gagged her mouth, lifted her bodily to the nearby paddy field. Then, he committed rape on her. (b) It is further alleged that the accused-appellant left the victim inside the well and went away. The victim somehow escaped and came home and disclosed the incident to her father and brother, who in turn called Page 2 of 15 for a village meeting on the same day. The incident was confronted with the appellant, who denied the same. Therefore, Birsa P.S. Case No.58 dated 28.09.1996 has been registered. (c) After investigation, charge-sheet was filed against the appellant and charges were framed for the offence under Section 376/307 of the I.P.C. and the appellant was put to trial on the denial of charges. 4. The prosecution in order to bring home charges, examined twelve witnesses to establish its case. However, the defence took a stance of denial. P.Ws.1 & 2 were the villagers, those who had participated in the meeting called by the father of the victim. P.W.3 is the uncle of the victim girl. P.W.4 is the wife of P.W.3, who is an aunt of the victim. P.W.5 claims to be an eyewitness to the occurrence. P.W.6 is the father of the victim girl, whereas P.W.7 was the seizure witness. P.Ws.8 and 11 were the I.O. of the case. P.W.9 is the victim girl whereas P.W.12 was the doctor, who examined the victim. 5. After taking into consideration the evidence of all the witnesses, those who have deposed in unison confirming the incident as narrated by the victim (P.W.9), the learned trial Court found the appellant guilty for Page 3 of 15 the offence punishable under Sections 376/307 of I.P.C. and imposed penalty as mentioned above. 6. Ms. Banarjee, learned counsel for the appellant, submitted that this is a case of clear acquittal as the testimony of the witnesses if carefully scrutinized, it would reveal that inconsistency in testimony are apparent. Therefore, the trustworthiness of the evidence of the witnesses is clearly doubtful particularly the testimony of P.W.9, the victim, inspires no confidence because the incident alleged to have happened in the afternoon and she herself has deposed that there were other persons present near the well where she was taking bath. Therefore, the testimony cannot be relied upon. She has very empathically relied upon the evidence of the doctor (P.W.12). The doctor has opined that there is no sign of recent sexual intercourse present and the doctor has explained what he meant by recent sexual intercourse, inter alia stating as under:- “2. Recent sexual intercourse I mean sexual intercourse within three to four days in this case. There was fresh tear. When the inflammation for initial time gradually subsides lapse of condition of inflammation gradually becomes mild. I have not mentioned redness in my report. The inflammation in such cases disappears after four the Page 4 of 15 days. If it is true the colour of injury is guiding factor to determine the age of the victim. Nail mark in the body can continue for seven days. I examined the at 5.P.M. on 29.09.96. I examine the victim in police constable the victim. Few identifying minutes the victim was produced before me for my examination.” (uncleared) 7. To create a doubt to the evidence of P.W.9 vis-à-vis the evidence of P.W.12, Ms. Banarjee has connectedly produced various literature regarding the medico-legal examination of the victim of sexual violence. By taking me to the literature, learned counsel for the appellant submitted that in this case the procedure and protocol to be followed for examination of the victim is given a clear go by. Therefore, the testimony of P.W.12 is not worth reliance. She further submitted that as per the version of the victim, Ratnakar Mahato wrote a report addressed to Jareikela Police Officer Ext.2 and subsequently another report was written by her uncle Khyamanidhi Mahato. Both were written as per the version of the victim. As per her version, the Jareikela Police outpost instructed both the appellant and victim to marry and since the attempt for the registration of marriage failed, the second report was lodged at Page 5 of 15 Birsa Police Station vide Ext.3. Thus, the report lodged at Birsa Police Station would not have been regarded as the First Information Report as prior to that report Ext.2 was already in existence and she submitted that the subsequent report (Ext.3) on the basis of which the investigation had proceeded hit by Section 162 read with Section 154 of Cr.P.C. 8. Ms. Banarjee, learned counsel for the appellant, has relied upon the judgment of the Hon’ble Supreme Court in the case of Surender Kaushik and Ors. vrs. State of Uttar Pradesh and Ors. reported in (2013) 5 SCC 148 and submitted that on the same score, there cannot be two F.I.Rs. against the same person in respect of the same incident. She empathically submitted that Ext.3 which came to be registered subsequently after the alleged refusal of the appellant to marry the victim is not to be relied upon, however, in the present case, the entire investigation has been proceeded on the basis of the said report i.e. Ext.3. She has submitted that the delay in registration of the F.I.R. and the delay in examination of the victim by the doctor are fatal to the prosecution. Page 6 of 15 9. I have taken into consideration the evidence on record and the case law cited by Ms. Banarjee, learned counsel for the appellant as well as the literatures produced before the Court, I have ventured into the evidence on record. In light of the aforementioned, I have proceeded to analyse the appreciation of evidence that has been done by the learned trial Court. The learned trial Court in paragraph-13 of the judgment has dealt with the argument of the defence regarding the delay in registration of F.I.R. and recorded as under:- “13. It is true there was delay. But delay of four days has been clear and cogently explained by the prosecution witnesses that the Officer-in-charge of Jareikela Police- Out Post on the first day of the report wanted the father, uncle and victim to come on the next day. When they went on the next day of the incident, he suggested to get the girl married with the accused. Accordingly, they went to court for registration of marriage, but returned back for want of certificate. When certificate was arranged, accused did not turn up. Again they came to police out post at Jareikela, but the Police officer did not take any action. Thereafter they came to Bisra Police Station. This explanation appears to be enough explaining the delay. In this explanation there could be no doubt. Because had the prosecution otherwise intended, they could have assigned other cause and reason to explain the delay like villagers detained them to settle the dispute in the village out of Court for which report was not given in the police station in time. That would have been very easy for the Page 7 of 15 father and uncle of the victim to say. But, indeed, they appears to be very bold and straight forward in disclosing the act of cause of delay, why they came to Bisra Police Station late. More over if the rustic villagers had been actually shrewd and skillful and otherwise crocked, they would have cooked up an explanation like that easily. Since they were actually, innocent and were unable to invent. Such imaginary explanation, they narrated the real incident leading to delay in lodging the report in Bisra Police Station.” As regards the delay in the medical examination of the victim (P.W.9) also, the learned trial Court has given a finding as under:- “As regards delay in medical examination, the victim clearly deposed in her evidence Para-11 that the police officer took her to the doctor on 29.9.96. It is true requisition was written on 28.9.96, but the police officer took the victim to the doctor on 29.8.96. For that, the police officer is responsible not the victim. Hence, this delay in medical examination cannot twist the truth in as much as the evidence of the doctor P.W.12 and her report Ext.14 go to show that on examination of the victim girl on 29.9.1996, P.W.12 found signs of sexual intercourse present. The hymen was torn. The torn margins showed mild inflammation. Three nail marks were seen on her back side. From this, signs and symptoms, it is clear that the victim was subjected to sexual violence. In cross examination, it was also elicited that she was subjected to sexual intercourse before three to four days. It clearly coincides with the date of incident. Hence, the evidence of P.W.12 and her strong corroboration to the testimony of the victim. The testimony of the victim regarding the incident being report Ext.14 provides Page 8 of 15 corroborated by the evidence of doctor and his report and her immediate disclosure of the dirty incident before her aunt and well wishers and in the place of meeting in the presence of the accused further corroborates her evidence eliminating chance of embellishment, torturing or concoction.” 10. The argument advanced by Ms. Banarjee, learned counsel for the appellant to create a doubt on the prosecution version on the basis of delay in registration of F.I.R. and delay in examination of the victim by the doctor is well explained and appreciated by the learned trial Court and I am completely in agreement with such view. 11. Reverting to the evidence on record of the present case, it is very clear that P.W.9, the victim in her testimony has stated as under:- “I know the accused. The incident had taken place on 24.9.96 on a Tuesday at 12 noon. On that day I had been to take bath in the well of a field. In the well, Gulanchi Mahato and Maheswar Mahato were taking bath. Ramesh Mahanto (accused) was also taking bath. Gulanchi Mahanto and Maheswar Mahanto after taking bath, went back to their house. I was taking bath putting on my skirt keeping the semiji and other garments on the platform of the well. Accused Ramesh gagged my mouth by means of semij and bodily lifted me to the nearby field. Accused committed rape on me. Thereafter, he put me inside the bathing well. The people take bath inside the well getting down the well. I came back to Page 9 of 15 the house, informed the incident of rape to my aunt. Thereafter I returned back to my house. I also narrated the incident before my father and brother. On the same day at about 7 P.M. a meeting was convened by my father regarding the incident…...” 12. The said witness (P.W.9) has sustained very extensive cross- examination. However, nothing could be elucidated from her testimony to shatter her version in so far as the incident is concerned. Her version is directly supported by the independent witnesses namely P.Ws.1, 2 and 3. All the witnesses in unison have stated that on 24.09.1996 evening a meeting was called by Rajendra Mahato, the father of the victim relating to the incident of rape committed by the accused-appellant on his daughter. They attended the meeting. The daughter of Rajendra Mahato disclosed before all present in the meeting that on that day at about 12 noon time when she had gone to take bath near the village well, the accused bodily lifted her to a nearby paddy field and sexually assaulted her. The accused was questioned, who denied the allegation. These witnesses were cross-examined but they are consistent in their version. P.W.4 in her statement has stated that “on 24.09.1996 on Tuesday, my niece (victim’s name) came crying and narrated before me that when she Page 10 of 15 had been to take bath in the well, accused Ramesh Mahato sexually assaulted her in the nearby field. She was put inside the well. After returning to my husband to the house, I informed him regarding the incident.” This witness is the niece of the victim. The testimony of this witness reveals that immediately after the incident, the victim narrated in minute detail about the incident and in quick succession a meeting was called for on the same day in the evening 7 O’ clock. P.W.6, who is the father of the victim, has completed the story put forth by the prosecution by detailing the incident and as to how the meeting was convened to settle the dispute and when the dispute was not settled, he was forced to register the F.I.R. 13. On right appreciating the evidence of the afore-named witnesses, no doubt is left in the mind that the incident indeed had taken place on 24.09.1996 in the afternoon where the victim P.W.9 had been ravished by the appellant. Therefore, the conviction recorded by the learned trial Court against the appellant in so far as the offence under Section 376 of I.P.C. is concerned, cannot be questioned. Page 11 of 15 14. Now coming to the charge under Section 307 of I.P.C., it is evident from the evidence of P.W.12 that there is no bodily injury caused to the victim. P.W.12 in his testimony has deposed as under:- “(i) Signs of recent sexual intercourse were present. (ii) The hymen was torn and torn margins showed mild inflammation. (iii) three nail marks were seen on her back, about 4” above the scarial end. (iv) No other signs of external injury was seen. (v) No foreign bodies like hair, semen etc were found on her private parts. (vi) Vaginal swab, saliva were collected and preserved. (vii) No external evidence of any vaneral diseases. (viii) The patient was Headquarters Hospital, determination of exact age. to District for Sundargarh referred From the deposition of P.W.12 in regard to the assault part is concerned, it is clear that the victim girl did not sustain any injury. The evidence of P.W.9 that after the appellant committed rape on her, he brought her back and left her inside the well is not corroborating with any evidence. Except for the isolated testimony of P.W.9 to the effect that after the incident happened, the appellant has put her well, no other Page 12 of 15 evidence has come on record. At the same time, in that regard the testimony of P.W.9 is very relevant to be emphasized. She stated that:- “Accused Ramesh gagged my mouth by means of semij and bodily lifted me to the nearby field. Accused committed rape on me. Thereafter, he put me inside the bath well. The people take bath inside the well getting down the well. I came back to the house and informed the incident of rape to my aunt.” 15. In the cross-examination, P.W.9 stated that she had not sustained any injury during the incident. She has also stated that the depth of the well was about 20’ feet. She was inside the well, as a result of which, she did not sustain any injury. The prosecution has not attempted to examine any witnesses those who were present in the well as per the version of P.W.9. Except for the isolated evidence, no other evidence has been brought on record in that regard. In the light of the aforementioned evidence on record, the learned trial court has recorded as under:- “Next comes to the charge U/s. 307 IPC. The victim stated that accused put her inside the well after committing rape. The intention of the accused is to be inferred from his action. If he had intended to rape, after committing rape, he could have left the spot, leaving the victim at the spot. Instead of taking her to the well and putting her inside it. The action of the accused announces his intention of causing murder of Page 13 of 15 the victim by throwing her into the wall. Hence, it is held that it is clear attempt of murder of the victim by the accused. Thus it proved the charge U/s. 307 IPC against the accused” 16. The finding recorded by the learned trial Court in so far as the charge under Section 307 of I.P.C. is concerned, is bereft of record and is the culmination of inappropriate appreciation of evidence. Therefore, I am completely disagree with the findings recorded by the learned trial Court. Hence, in so far as the charge of the offence under Section 307 of I.P.C. is concerned, the appellant is entitled to be acquitted. Accordingly, the appellant is acquitted of the charge under Section 307 of I.P.C. 17. Ms. Banarjee, learned counsel for the appellant submits that the appellant has in fact served out the entire sentence. Mr. Apat, learned Additional Government Advocate for the State, has also not disputed the said fact. Since the sentence has already been undergone by the appellant, no further custody is required to be undergone by the appellant in line of the awarded sentence. Accordingly, while maintaining the conviction and sentence awarded by the learned trial Court in so far as the offence under Section 376 of I.P.C. is concerned, the conviction and Page 14 of 15 sentence recorded by the learned Additional CJM-cum-Assistant Sessions Judge, Rourkela in S.T. Case No.30/17 of 1997 on the charges under Section 307 of I.P.C. is set aside. 18. Accordingly, the appeal is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 18th of July 2025/ Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 18-Jul-2025 18:46:04 Page 15 of 15