The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.379 of 2005 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Nabakishore Pradhan @ Nabakela ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Ms. Shatabdi Samantaray, Advocate For the Respondent : Mr. Sarathi Jyoti Mohanty, ASC CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 29.07.2025 :: Date of Judgment: 19.08.2025 S.S. Mishra, J. The present Criminal Appeal, is filed by the appellant under Section 374 of Cr. P.C., assailing the judgment and order dated 31.08.2005 passed by the learned Additional Sessions Judge, Fast Track Court No.III, Bhubaneswar in S.T. Case No.42/52/344 of 2005/2004, whereby the learned trial Court has convicted the accused-appellant for the offence under Section 354/506 of the Indian Penal Code, 1860 (herein after “Code” for brevity) and sentenced him to undergo R.I. for a period of two years under Section 354 of the Code and further a period of one year under Section 506 of the Code, and it was ordered that the sentences are to run consecutively. 2. The case of the prosecution, tersely put, is that on 16.01.2004, the informant-victim lodged an F.I.R. alleging that on 11.01.2004, one Naba Kela(accused-appellant in the present case) approached the informant at her home saying that his wife has gone away being annoyed and she(the informant) should convince her and bring her back. And they together left for bringing back the present appellant’s wife. On the way of Kaargil Road, near the aerodrome wall the accused overpowered the informant- victim and outraged her modesty and gave threatening to take away her and her husband’s life if the matter was disclosed to anyone. The informant-victim came back home crying, later informing about the same to her husband upon his return from fishing. Husband of the informant brought this fact to the notice of two persons one namely Binapani Mishra and other namely Baruni Didi and accompanied them Page 2 of 8 to the house of the accused-appellant to know about the matter from him. Further, the informant becoming intolerable of the criticisms faced, took poison and lost her consciousness and was rushed to the capital hospital. On the next morning, she came back home with her husband without informing anything to the Doctor. Again during the late night hours of 13.01.2004, the accused appellant-Naba Kela, came to her house and threatened to take away the life of the informant and her husband if the matter was disclosed. So, she kept quiet, not disclosing about the matter to anyone. As she was admitted to the hospital taking poison, police searched for her husband to know about the actual matter after which the informant, lodged report stating true facts of the matter. On this report the case was registered and following arrest of the accused he was produced before the learned Court below and was forwarded to the custody on 18.01.2004 and after further investigation and recording of statement of the accused-appellant and the witnesses, a charge sheet was filed under Section 376/506 of the Code, to which the accused took plea of complete denial. So, he was put to trial under the aforementioned provisions of Law. Page 3 of 8 3. To substantiate the case put against the accused-appellant as many as eight witnesses were examined by the prosecution, out of which, P.W.1 was the informant, P.W.3 is the husband of the informant, P.W.2 is the sister of P.W.3, P.Ws.4 and 5 are the two ladies to whom the matter was informed and they also visited the house of the accused- appellant for knowing about the matter. P.W. 6 was an independent witness, P.W.7 was the Doctor who treated the victim upon her consumption of poison and P.W.8 was the Investigating Officer. 4. The learned trial Court analysed the oral evidence and documents on record and categorically gave the following findings:- “Then coming to the alleged of rape it seen that there is no direct allegation of rape in the report of P.W.1. As per the wording of the report her modesty was completely outraged. During evidence in the court P.W.1 has directly stated that accused committed rape on her by making her naked and by opening his pyant. Further she has stated that at the time of commission of rape accused caught hold of her neck for which she could not raise shout. Though P.W.1 has stated that accused committed rape and there was discharge of semen at the time of intercourse, there is no specific evidence by her that there was penetration of the male organ of the accused in the private part of P.W.1. Regarding the alleged rape evidence of P.W.3 corroborates to the evidence of P.W.1 and P.W.3 came to know regarding commission of such rape by the accused on her from P.W.1. P.W. 1 has deposed that her blouse was torn and there was biting mark on her chest. P.W.3 has stated he has no knowledge if Page 4 of 8 wearing apparels of P.W.1 were torned. There is evidence in the record regarding the place where rape was committed is a stony place. But, there is no evidence on record that P.W.1 sustained any injury on her person due to rough surface. P.W.1 has categorically stated that her glass bangles were broken and fell on the spot which was shown by her to the police. I.O. has specifically deposed that there was no mark of violence at the spot and no broken glass bangles was there in the spot and no such thing was seized by her except the wearing apparels of the victim and of the accused. So far as the semen stain is concerned P.W.1 has deposed she wiped out semen in her saya and saree and did not wash the same till those were seized by the police. This evidence of P.W.1 gets support from the report of the FSL of the seized wearing apparels of both victim and accused. It has been marked exhibit. P.W.1 has also specifically deposed colour of her saree, saya and blouse. This evidence of victim gets support from the seizure list where specific colour of saree, saya and blouse has been mentioned. Though all the above mentioned facts go in favour of the prosecution case, the doctor P.W.7 has deposed she examined P.W.1 and found there was no sign of forcible intercourse. The doctor examined the victim on 17.1.2004 whereas the alleged incident took place on 11.1.2004. Whatsoever may be the time of examination, as per technical report of the doctor there was no sign of forcible intercourse. Apart from the report of the doctor, it has also been discussed earlier that as per existing evidence of victim there is no direct and conclusive proof of sexual intercourse and rape. But from the earlier discussion it is evident that there was attempt to rape which fact has been proved by oral evidence adduced by the witnesses and the same is supported by documentary evidence regarding existence of semen mark on the wearing apparel of both victim and accused. So it is held that prosecution has been able to prove its case beyond all reasonable doubt against the accused persons u/s 511 I.P.C. instead of u/s 376 I.P.C. Further prosecution has been able to prove its case against the accused person u/s 506 I.P.C. So the accused is found guilty of the offences u/s 511 I.P.C. and 506 I.P.C and is convicted thereunder.” Page 5 of 8 5. Aggrieved by the aforementioned judgment of conviction and order of sentence passed by the learned Additional Sessions Judge, Fast Track Court No.III, Bhubaneswar, the present Appeal has been preferred by the appellant. 6. Heard Ms. Shatabdi Samantray, learned Counsel appearing for the appellants and Mr. Sarathi Jyoti Mohanty, learned Additional Standing Counsel for the State. 7. While analyzing the evidence on record, I find no reason to disagree with the findings returned by the learned trial court as has been reproduced above. Hence, I affirm the conviction recorded against the appellant for the offences under Section 354/506 of the Code. However, coming to the quantum of sentence, it appears that the learned trial Court has only awarded a sentence of two years of R.I. for offence under Section 354 of the Code and further one year for the offence under Section 506 of the Code, against the statutory provision mandating the Court to not only impose the sentence under Section 354 of the Code but also the fine. Therefore, this is a case where while affirming the Page 6 of 8 conviction, the sentence awarded by the learned trial Court is liable to be varied. At this stage, Ms. Shatabdi Samantray, learned counsel for the appellant submitted that the appellant has already undergone imprisonment of one year and nine months which has not been disputed by Mr. Sarathi Jyoti Mohanty, learned ASC. Therefore, he may not be sent back the custody to serve out the remaining sentence at the belated stage. The incident relates back to the year 2004. At that point in time, the appellant was in his early 30s. At present he must be in his early 50s. Therefore, sending him to custody at this stage would definitely be harsh on him and detrimental to the entire family. Too much have changed in between in regard to his social status and he has already well integrated into the society. Therefore, I am inclined to accede to the prayer made by Ms. Samantraty, learned counsel for the appellant. 8. Accordingly, the sentence of two years R.I. for offence under Section 354 of the Code and further one year for offence under Section 506 of the Code as awarded against the appellant is reduced down to that of the custody he has already undergone. However, I impose a fine of Page 7 of 8 Rs.5,000/-(rupees five thousand only) for the offences U/s.354/506 of the Code, in default of payment of fine, he shall undergo S.I. of one month. The fine amount to be deposited by the appellant shall be disbursed to the victim in accordance with the provisions of Section 357 Cr.P.C. 9. Hence, the CRLA is partly allowed. The High Court of Orissa, Cuttack. Dated the 19th of August 2025/Swarna (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 22-Aug-2025 17:06:17 Page 8 of 8