The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No. 180 of 2008 (In the matter of an application under Section 374(2) of Criminal Procedure Code) Nabin Pradhan ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Anshuman Ray, Advocate For the Respondent : Ms. Suvalaxmi Devi, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 25.07.2025 : Date of Judgment: 31.07.2025 S.S. Mishra, J. The present criminal appeal filed by the appellant under Section 374 (2) of Cr.P.C. is directed against the judgment of conviction and order of sentence dated 13.02.2008/05.04.2008 passed by the learned Special Judge, Sonepur in Sessions Case No. 13 of 2007, whereby the learned trial Court has convicted the appellant under Sections 458 and 354 IPC and sentenced him to undergo R.I. for one year and to pay a fine of Rs.1000/-, in default R.I. for one month under Section 458 IPC and R.I. for one year under Section 354 of IPC. 2.
Legal Reasoning
the ratio of the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra1 and Dhani @ Dhaneswar Sahu vs. State of Orissa2. 13. In such view of the matter, the present Criminal Appeal in so far as the conviction is concerned, is turned down. But instead of sentencing the appellant to suffer imprisonment, this Court directs the appellant to be released under Section 4 of the Probation of Offenders Act for a period of one year on his executing bond of Rs.5,000/- (Rupees Five Thousand) within one month with one surety for the like amount to 1 2012 (Supp-II) OLR 469 2 2007 (Supp.II) OLR 250 Page 13 of 14 appear and receive the sentence when called upon during such period and in the meantime, the appellant shall keep peace and good behavior and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of one year. However, the sentence regarding payment of fine is enhanced to Rs.5,000/- (rupees five thousand), which shall be disbursed to the victim in accordance with the provision of Section 357 Cr.P.C, in default of payment of fine, the appellant shall undergo S.I. for fifteen days. The appellant is directed to appear before the learned trial court to furnish the bail bond, as mentioned above. 14. The CRLA is accordingly partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 31st July, 2025/Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 05-Aug-2025 12:54:05 Page 14 of 14
Arguments
Heard Mr. Anshuman Ray, learned counsel for the appellant and Ms. Suvalaxmi Devi, learned counsel for the State. 3. The prosecution case, in nutshell, is that on 17.03.2006 at about 11 P.M. at night the accused Nabin Padhan had trespassed into the house of one Rebati Bariha (P.W.1) of village Sahajbahal on the pretext of taking betel and pulled down her wearing sarees and attempted to commit rape on her. The further case of the prosecution is that when Rebati protested, Nabin threatened her by saying her to kill by Bhujali. In the meantime, Rebati’s husband returned to home from village Khaliapali and hearing the exchange of words between her and Nabin, entered into the house and seeing her husband, Nabin (appellant) begged apology to her husband and assured not to commit such mistake in future. But her husband called the Sarapanch and Ward Member of village Sahajbahal and also Nabin’s father and village gentries. On their arrival, the present Page 2 of 14 appellant came out of the house and took the plea that he had come to take betel and went away by giving threatening to see her husband in the morning and to kill him. 4. On the basis of the aforesaid allegations, Rampur P.S. Case No. 12 of 2006 was registered for the offence punishable under Sections 458/354/506 of IPC read with Section 3(1) (x) of SC & ST (PoA) Act. After investigation, charges were framed against the appellant for the offences as mentioned above and he was put to trial. 5. The prosecution in order to prove its case examined as many as eight witnesses, whereas the defence took a stand of denial and claimed trial. 6. P.W.1, was the victim informant, P.W.2 was the minor daughter of the victim/informant and an eye witness to the occurrence, P.W.3 is the husband of the victim, P.Ws.4, 5 and 6 were the co-villagers and villages gentries, who had come to the spot being called by the informant’s husband, P.W.7 was the D.S.P., who has investigated the case and Page 3 of 14 submitted the charge sheet and P.W.8 was the Tahasildar, who had issued the Caste Certificate to the victim and the accused. 7. The trial court by heavily relying upon the testimony of P.W.1, the victim and P.W.3, the husband, has recorded guilty of the appellant of offence under Sections 354 and 458 of IPC and sentenced him to undergo rigorous imprisonment, as mentioned above. However, the findings and the evidence miserably lacking in regard to the establishing of the charges leveled against the appellant under Section 3 (1) (x) of SC and ST (PoA) Act and Section 506 of the IPC, the appellant has been acquitted. The trial court while recording the conviction under Sections 354/458 of IPC, has returning the following findings:- “9. Admittedly, the alleged incident had taken place at the dead hour of the night at about 11 PM inside the house of the victim informant where the victim was present with her two minor children. So, naturally no Independent witness will be available at such hour of the night to witness the occurrence. Hence, testimony of the victim along with other circumstantial evidence is to be taken into consideration to find out whether the prosecution has succeeded to prove the charge u/s 354 IPC against the accused. No doubt, the decision reported in (2005) 30 OCR 322 (Panduram Sitaram Bhagat vr. State of Maharashtra) Their Lordships of the Hon'ble Apex Court have clearly held that the general proposition that ordinarily a lady would not put her character at stake may not be wrong but cannot be applied universally. Each case has to be determined on the touch stone of Page 4 of 14 the factual matrix thereon. But in the present case, the victim is a married lady having two minor children and she was also sleeping with her minor children at the time of the alleged incident and husband was assent from the house. So, she would not dare to make such a false allegation against the accused and put her character at stake knowing very well that she would be looked down upon by her own husband and children. Further, the evidence of the victim informant p.w.1 has found corroboration to some extent in the evidence of her daughter p.w.2, husband p.w3, one co-villager p.w.4 and the sarpanch of the village p.w.5 as soon after the occurrence they had found the accused with the victim informant inside the house in the dead hour of the night. Though these P.Ws have been cross-examined by the defence nothing substantial has been brought out in their cross- examination to rebut their evidence in any manner. Of course, during the cross-examination of the P.ws their attention was invited to certain portions of their statements given before the I.O. in an effort to demonstrate that there were inconsistencies. I have cautiously examined all such contradictions and inconsistencies and found none of them to be material because when an incident is narrated by some person to different persons on different occasions, some difference in the mood of narrating the incident is bound to occur and such difference does not militate against the trustworthiness of the narration, unless the variation are held to be so abnormal or unnatural as would not occur if the witness would have really witnessed what he was narrating. So though there are some contradictions and inconsistencies between the evidence and the statement to the police given by PW 3,4 and 5, in my opinion, those contradictions and inconsistencies do not militate against the trustworthiness of the evidence of the witnesses. I have gone through the facts and circumstance of the above cited case and found that the facts and circumstances of the said case do not tally with the facts and circumstance of the present case because in the cited case there was ill-feeling between the victim and the accused and the accused had asked the victim to vacate his house where the victim was staying on rent and there was no independent corroboration to the evidence or the victim and her husband and son whereas in the present case Page 5 of 14 there is no such strained relationship between the victim and the accused. Rather there is some sort of corroborative evidence in the testimony of p.w.4 and 5 who soon after the occurrence had come to the spot being called by p.w.3 and had seen the accused where the victim was present in the house with her two children. So, by testing the evidence of the victim informant on the touch stone of the factual matrix of the case, I am of the view that the sole testimony of the victim informant cannot be brushed aside not reliable and trustworthy. Admittedly, there is a delay of 3 days in lodging the FIR because the incident had taken place on 17.3.06 and the FIR was lodged on 20.3.06 as evident from the FIR Ext.1 and there is no explanation for such delay in the FIR. But on that ground it cannot be said that there was no such occurrence and due to some other dispute a false FIR has been lodged against the accused, because law is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are, one cannot expect the villagers to rush to the PS immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. So unless there is indication of fabrication the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. In the present care, I have thoroughly examined the evidence of the prosecution witnesses and found no indication of fabrication for which delay is caused in lodging the FIR. So, I am not inclined to reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay in lodging the FIR. The delay of 3 days in lodging the FIR can be condoned as there is nothing in the cross-examination of the prosecution witnesses to show that they have any motive for falsely implicating the accused. The submission of the learned defence counsel that non- examination or the neighbours and non-support of one of the witnesses named in the FIR to the prosecution case also throws suspicion of veracity of the prosecution case does not influence me much because two other witnesses named in the FIR have supported the prosecution case and when those two witnesses are Page 6 of 14 the sarpanch and the co-villager and not outsiders, non- examination of the neighbours cannot be considered as fatal to the prosecution. There is also no material on record to substantiate the defence plea that p.w.4 & and 5 are hostile to the accused due to political rivalry. The further submission of the learned defence counsel that the statement of the victim informant p.w.1 that she had not sustained any injury on her person and her wearing bangles were not broken and she had not raised hue and cry and had not shouted for help when the accused pulled her wearing saree suggests that the victim informant was a consenting party is not tenable because the victim informant was sleeping at the time of the occurrence and in course of the occurrence she woke up and therefore she might be over awed by the situation and might have been spelt bound for which she might not have raised hue and cry and have not shouted for help. If the victim was a consenting party then she would not have kept the door open and would not have allowed the accused outrage her modesty or to pull down her wearing saree. That apart, the two children of the victim were also sleeping with her at the time of the occurrence and in presence of the children the victim could not have allowed the accused to have sexual intercourse with her or to under her. Therefore, in my opinion, the submissions put forward by the learned defence counsel have got no strong force in it and so the same is over ruled and it is held that the charge against the accused u/s 354 IPC is also well proved.” 8. Mr. A. Roy, learned counsel for the appellant has taken me to the evidence of the witnesses adduced by the prosecution and submitted that the evidence in so far as the prosecution story regarding outraging of the modesty of the victim P.W.1 is concerned, is clearly lacking in the present case. Hence, the conviction in that regard is not sustainable. Since the evidence so recorded by the prosecution to establish its case Page 7 of 14 inspires no confidence and the trial court itself has disbelieved the same while recording the acquittal so far as other findings are concerned relying upon the same set of evidence for the purpose of conviction for the offence under Sections 354/458 IPC is not safe. 9. I have gone through the evidence as read out by both the counsel in extenso. The FIR, Ext.1 has been lodged by the victim herself. In the FIR she has alleged that the appellant has entered into her house in the midnight of 17.03.2006 in order to rape her. When her husband entered into the house returning from the marriage party, the appellant got scared and tried to flee away from the house. However, her husband called the village people to apprehend him. He sought pardon before all the villagers and accordingly the FIR was registered on the next day morning being Rampur P.S. Case No.12 of 2006. When the said witness came to the witness box, she deposed in the similar fashion. However, she has not described in what manner the appellant has attempted to outrage her modesty, except saying the appellant entered inside her house and forcibly outraged her modesty. She has also stated that when she protested, he did not listen to her. At that point of time her husband Page 8 of 14 entered into the house and closed the door from outside and called the local villagers. She has also stated that in the house she was sleeping with her children, who were eight years and five years of age. P.W.2 is the minor daughter, who was sleeping along with P.W.1 at the time of incident. She had stated in her evidence that “my mother is the informant in this case. I know accused Nabin Pradhan standing in the dock. The occurrence took place on a Friday at about 11 P.M. at night. At the aforesaid time myself and my elder brother and my mother were sleeping inside our house. hearing hue and cry in our house I woke up from sleep and saw the accused was inside our bedroom and my father and some villagers were also present.” In her cross examination, she has stated “When I woke up I saw my mother was sitting on the cot and the accused was sleeping under the cot. I was examined by the police two to four days after the occurrence.” Similarly, the villagers and the husband have deposed that the appellant was found in the house of P.W.1 in the midnight. However, none of the witnesses have narrated regarding the outraging of modesty of P.W.1 by the appellant. The villagers, those who were examined, have also deposed in the similar line. They have stated Page 9 of 14 that the appellant was inside the house of Kshyamanidhi Bariha (P.W.3). When they reached, the door was closed from outside. Therefore, the evidence of all the witnesses like P.Ws. 1, 3, 4 and 6 are consistent in so far as the presence of the appellant inside the house of P.W.1 in the midnight on the date of occurrence. The appellant was put this evidence under Section 313 Cr.P.C. which he could not explain as to why during the night he was in the house of the P.W.1. However, in so far as the allegation of outraging the modesty of P.W.1 by the appellant is concerned, barring the solidary statement of the P.W.1, there is no other evidence nor the witness who has uttered anything about the same. The testimony of P.W.1 is also shaky in that regard. She except saying that the appellant was trying to outrage her modesty, has not narrated as to what has been done by the appellant in the said night. The sole minor witness, i.e. P.W.2, on the contrary, has stated that she has seen the appellant sleeping inside the cot, whereas her mother was sitting on the cot. This gives an hint of consent by the P.W.1. These being the nature of evidence, I am unable to accept the findings recorded by the learned trial court in so far as the charges under Section 354 IPC is concerned. Page 10 of 14 However, the evidence regarding the charge under Section 458 IPC is unimpeachable and trustworthy, in the light of the evidence of P.Ws. 1, 2, 3, 4 and 5. All the witnesses have sustained extensive cross examination at the hands of the defence lawyer, however, that part of evidence was remained unshaken. Hence, the recording of conviction of the trial court in so far as guilt of the appellant under Section 458 of IPC is sustainable. 10. At this stage, Mr. Roy, learned counsel for the appellant submitted that the incident had taken place on 17.03.2006 whereas the FIR was been registered on 20.03.2006. The delay of three days in registration of FIR is not well explained by the prosecution, which is fatal. In that regard, I have examined the evidence of the witnesses including the evidence of P.W.8, the I.O. of the case. The incident had taken place on 17.03.2006 night and the villagers including Panchayat members were called for a settlement. The appellant remained adamant in his attitude. Therefore, eventually the FIR was registered. This aspect of the matter is apparent from the collective evidence of the witnesses. The defence has also not made any attempt to confront this aspect neither with the Page 11 of 14 independent witnesses nor with the eye witnesses. That being so, the delay in registration of the FIR cannot be treated to be fatal to the prosecution. Mr. Roy, learned counsel for the appellant, at this stage, has also submitted that the appellant has already undergone about thirty days custody. He further submitted that the appellant was about 32 years of age at the time of incident, i.e., in the year 2008, therefore, at present he is in his early fifties and he has no criminal antecedents. Therefore, he submitted that if this Court affirms the conviction recorded by the trial court in so far as the offence under Section 458 Cr.P.C. is concerned, the appellant may be granted the benefit of the Probation of Offenders Act. 11. Taking into consideration the fact that the appellant was only thirty-two years at the time of incident in the year 2006 and now he is in early fifties and the fact that he has a clean antecedent, I am of the considered view that the submission made by the learned counsel for the appellant deserves merit. The appellant was convicted vide judgment and order dated 13.02.2008/05.04.2008 and the appeal is pending since 2008. Much has changed in the life of the appellant in between and he has Page 12 of 14 already settled in his life. The appellant has undergone the ordeal of prolonged trial and pendency of appeal for about seventeen years. 12. In the prevailing scenario, regard being had to the age of the appellant and his clean antecedents and the fact that the incident had taken place in the year 2006, I am of the considered view that the appellant is entitled to the benefit of the Probation of Offenders Act read with Section 360 of Cr.P.C. The case of the appellant is also covered by