The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRREV No. 432 of 2001 Rabinarayan Patra …. Petitioner Mr. Arpit Sikdar, Advocate -versus- State of Odisha Opposite Party Mr. Karunakara Gaya, Additional Standing Counsel …. CORAM: THE CHIEF JUSTICE Order No. 14.
Decision
ORDER 03.05.2024 This matter is taken up through Hybrid mode. 2. Heard Mr. Arpit Sikdar, learned counsel appearing on behalf of the petitioner and Mr. Karunakar Gaya, learned Additional Standing Counsel (ASC) for the opposite party-State. 3. The petitioner has put to challenge, in the present criminal revision petition filed under Section 497 of the Cr. P.C., a judgment dated 01.10.1999 passed by the learned Additional Sessions Judge, Jharsuguda in Criminal Appeal No.50/8/25 of 98-99, whereby he upheld the finding of conviction accorded by the trial Court for the offences punishable under Sections 376 and 417 of the Indian Penal Code (in short ‘IPC’) against the petitioner but modified the sentence awarded for the offence punishable under Section 417 of the IPC to a fine of Rs.20,000/-. 4. It is worthwhile mentioning that the petitioner was convicted of the offence punishable under Sections 376 and 417 of the IPC by the learned Assistant Sessions Judge, Jharsuguda in S.T. Case Page 1 of 6 No.24/5 of 1998 and was sentenced to undergo Rigorous Imprisonment (RI) for three years for the offence punishable under Section 376 of the IPC and to pay a fine of Rs.30,000/-, in default thereof, further RI for a term of one year. For the offence punishable under Section 417 of the IPC, the petitioner was sentenced to undergo RI for six months and to pay a fine of Rs.20,000/-, in default thereof, the petitioner was to undergo RI for further period of three months. 5. Learned counsel appearing on behalf of the petitioner has submitted that the petitioner and the alleged victim were in love with each other. The victim was admittedly aged nearly 20 years at the time of lodging of the FIR. They were married also. He relies upon a marriage certificate of the year 2000, i.e. subsequent to the conviction. He submits that it is manifest from the evidence of the prosecution’s witnesses that according to the victim, the petitioner had given her a false promise to marry and because the petitioner declined to marry the victim, she filed a false criminal case against the petitioner. He has argued that the essential ingredients of Section 375 of the IPC are absent for the petitioner’s conviction under Section 376 of the IPC. He has further submitted that the ingredients of Section 415 of the IPC are also not attracted and, therefore, no conviction could have been recorded for the offence punishable under Section 417 of the IPC. He has also argued that out of the marriage between the petitioner and the victim, they have blessed with two children and they are living peacefully and happily as husband and wife. Page 2 of 6 6. I have carefully perused the impugned judgments and orders passed by the trial Court as well as the appellate Court and other relevant materials available on record. 7. The FIR was registered on 24.08.1997. The age of the victim, according to the FIR itself, was 20 years as on the date of the occurrence. According to her, when she had gone to answer nature’s call, the petitioner taking advantage of her loneliness had attempted to commit rape on her. According to the victim, the petitioner had committed rape on her. It also appears from the FIR that according to the victim, she had not disclosed the occurrence to anyone, fearing social stigma and the petitioner’s promise to marry her. It was also disclosed in the FIR that the petitioner had sexual intercourse with the victim several times because of which, the victim had become pregnant. Only thereafter, she is said to have informed her family members about the occurrence. Later, after filing of charge-sheet by the Police, cognizance was taken and charges were framed for commission of offences punishable under Sections 376 and 417 of the IPC. The prosecution’s witnesses were examined. The petitioner was also examined under Section 313 of the Cr. P.C. 8. The trial Court, after having examined as many as nine prosecution witnesses including the victim, reached a conclusion that the prosecution was able to establish the charge of offences punishable under Sections 376 and 417 of the IPC. After having convicted the petitioner of the offences punishable under Sections 376 and 417 of the IPC, as has been noted above, the trial Court passed the order of sentence. Whereas finding of conviction has been Page 3 of 6 affirmed, the sentence has been modified by the appellate Court on an appeal preferred by the petitioner as has been noted above. 9. After having perused the judgment of the learned trial Court and the appellate Court as well as other material evidence on record, I find force on the submission advanced on behalf of the petitioner that the FIR was lodged mainly on the allegation that the petitioner had established sexual relationship with the victim on a false promise of marriage. It appears from the FIR that the victim was major at the time of occurrence and her age was 20 years. The evidence suggests that after the first occurrence said to have taken place, the victim had sexual intercourse with the petitioner on several occasions. Those sexual intercourses are apparently consensual in nature. 10. In such view of the matter, in my considered opinion, the ingredients of Section 375 of the IPC are not attracted. Section 375 of the IPC reads as under: “A man is said to commit "rape" if he— (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other Page 4 of 6 person, under the circumstances falling under any of the following seven descriptions:— First.— Against her will. Secondly. — Without her consent. Thirdly. — With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly. — With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. — With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly. — With or without her consent, when she is under eighteen years of age. Seventhly. — When she is unable to communicate consent.” 11. The evidence of the prosecution’s witnesses, in the Court’s opinion, including the victim, go to suggest that the sexual intercourse committed by the petitioner with the victim was not against her will nor without her consent. Accordingly, the finding of conviction of the petitioner of the offence punishable under Section 376 of the IPC cannot be upheld. I am also of the view that based on the evidence adduced at the trial, the ingredients of cheating within the meaning of Section 415 of the IPC are also not available. Page 5 of 6 12. In such view of the matter, the impugned judgment of the appellate Court dated 01.10.1999 deserves interference and is accordingly set aside. Also, the order dated 22.07.1998 of the trial Court is hereby set aside. 13. This criminal revision petition is, accordingly, allowed. Consequently, the petitioner stands acquitted of the charges for commission of offences punishable under Sections 376 and 417 of the IPC. He accordingly stands discharged of the liabilities of the bail bonds. Chief Justice (Chakradhari Sharan Singh) S. Behera Signature Not Verified Digitally Signed Signed by: SUMANTA BEHERA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-May-2024 13:59:06 Page 6 of 6