The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No. 61 of 2007 (In the matter of an application under Section 374(2) of Criminal Procedure Code) Anil Mohapatra and another ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. S. Panda, 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 appellants under Section 374 (2) of Cr.P.C. is directed against the judgment of conviction and order of sentence dated 24.01.2007 passed by the learned Adhoc Additional Sessions Judge, Fast Track Court, Rourkela in S.T. Case No. 142/37 of 2006 arising out of G.R. Case No. 1456 of 2006
Legal Reasoning
(Mahila P.S. Case No. 47 of 2006), whereby the learned trial court has convicted the appellants for the offence under Sections 354 and 457 IPC read with Section 34 of IPC and sentenced them to undergo R.I. for one year and to pay a fine of Rs.1000/- each, in default to further undergo R.I. for three months for the offence under Section 354 IPC read with Section 34 of IPC and to undergo R.I. for two years and to pay a fine of Rs.1000/- each, in default to undergo R.I. for three months under Section 457 of IPC read with Section 34 of IPC. 2.
Legal Reasoning
Heard Mr. S. Panda, learned counsel for the appellants and Ms. Suvalaxmi Devi, learned counsel for the State. 3. The prosecution case in tersely stated is that on 27.07.2006 at about 11.00 P.M. while the victim was staying alone in her house, two unknown boys entered inside the house, by breaking the door, asked her to provide girl. When she refused to meet the same, they forcibly laid down her and committed rape on her one after another by removing her wearing nighty. Thereafter, they also assaulted her and pushed her outside. Taking advantage of the same, the victim lady closed the door Page 2 of 12 and put the lock from outside. She went to Raghunathpalli P.S. immediately in the night of occurrence and being referred to the Mahila P.S., Rourkela she reported the matter on the next day morning. The two appellants were brought to Rathunathpalli P.S. by the duty officer, who had accompanied the informant to her house after making a station dairy entry. 4. On the basis of the aforesaid allegations, Rourkela Mahila P.S. Case No. 47 of 2006 was registered for the offence punishable under Sections 376 (2) (g) of IPC, Section 457 of IPC read with Section 34 of IPC, which corresponds to G.R. Case No. 1456 of 2006 and after investigation, charges were framed against the appellants for the offences as mentioned above and they were put to trial. 5. The prosecution in order to prove its case, examined as many as seven witnesses, whereas the defence took a stand of denial and claimed trial. 6. P.W.1, was the Medical Officer, who examined the victim, P.W.2 was the woman Constable of Mahila P.S., Rourkela, P.W.3 was the Page 3 of 12 witness to the seizure, P.W.4. was the Medical Officer, who examined both the appellants, P.W.5 was the victim, P.W.6 was the I.O. of the present case and P.W.7 was the police officer before whom on the night of occurrence, the victim lady informed the matter. 7. The trial court after analyzing the evidence adduced by the prosecution arrived at the following conclusion: “14. Here in this case, on the basis of the statement of the victim lady the station diary entry was made marked as Ext.10. The same has been proved in this case. At that time the victim lady did not whisper about commission of rape. But on the next day in her written FIR she stated about the same. If at all the accused persons committed the sexual inter-course, even outside her private part she ought to have disclosed the same before the S.I. of Police of Raghunath palli P.S. on the night of occurrence. But she did not state regarding the same. Only she stated that the accused persons pushed and pulled her and they also assaulted her. As per the version of prosecutrix made in the court that the accused persons committed sexual intercourse outside her private part forcibly and ejaculated there. In the written FIR lodged by her she made contradictory statement and stated that the accused persons committed rape on her. At different point of time the victim lady made different statement, as discussed earlier. Further, it at all the accused persons ejaculated outside her private part, definitely her wearing cloth or the mat on which the occurrence took place, must have been stained with semen. But the same does not find place in this case. In this circumstances, the version of the sexual prosecutrix intercourse outside her private part cannot be believed nor it can be said that he accused persons attempted to commit rape to the victim lady. the accused persons committed that Page 4 of 12 the learned defence counsel made 15. But her evidence is free and very clear that these two accused persons entered inside her house and pulled and pushed her and thereafter she went to the P.S. by looking the door from outside. Though lengthy cross- examination but her evidence on this score was not contravened or shaken. If the accused persons did not enter inside her house, why the victim lady went to the P.S. on the night of occurrence and orally reported the matter. It cannot be said that the victim lady went to P.S. without any reason. Her evidence on this score gets corroboration from the relevant station diary entry marked Ext. 10 series and also from the evidence of P.W.7, the S.I. of Police. The said police officer deposed in the court that after making the station diary entry he went to the spot and apprehended these accused persons, from the house of the victim lady. After returning to the P.S. station diary entry was made which is marked as Ext.10/2 and the same shows the name of the accused persons along with two others. No evidence has been led as to why the other two persons were brought to the P.S. with these two accused persons. The I.O. also stated that she arrested the accused persons from Raghunath palli P.S. The accused persons during their examination u/s 313 Cr.P.C. stated that they were apprehended by the police from their house and they are innocent in the matter, which cannot be believed in the circumstances. xxx xxx xxx 17. That, the prosecution establishes by convincing evidence that the accused persons entered inside the house of the victim lady on the night of occurrence and finding the victim lady alone, in the house they made some indecent behaviour to her. They used criminal force to her by pulling and pushing her knowing that by their act, will outrage her modesty which is punishable u/s 354 read with sec.34 of the I.P.C.” Page 5 of 12 8. Aggrieved by the aforementioned findings recorded by the learned trial court resulting conviction of the appellants for the offence under sections 354/457/34 of IPC, the appellants have filed the present appeal. 9. Mr. Panda, learned counsel for the appellants submitted that the FIR in Rourkela Mahila P.S. Case No.47 of 2006 was registered on 28.07.2006 at 12.30 P.M. pertaining to an incident happened on 27.07.2006 at 11.30 P.M. The allegations made by the informant are very serious, therefore the offence under Sections 457/376 (2) (g) of IPC was registered against the appellants. The informant has refused to be examined by the doctor. Therefore, in the absence of medical evidence, the trial court has rightly acquitted the appellants of the charges under Section 376 (2) (g) of IPC. He further submitted that the evidences adduced by the prosecution are not trustworthy because the witnesses have contradicted themselves. The story put forth by the prosecution is beyond comprehension, unrealistic, hence not believable. 10. Ms. Suvalaxmi Devi, learned Addl. Standing Counsel tried to explain the contradiction pointed out by the learned counsel for the Page 6 of 12 appellants. She has submitted that the testimony of the victim is unequivocal which directly stands corroborated with her earlier version, which reflects in the FIR. Her version is also being corroborated with the evidence of P.W.6 and P.W.7. Therefore, there is no escape for the appellants from the charges as has been established by the prosecution, which reflects in the judgment under challenge. 11. In the light of the rival submission made by the parties, I have gone through the evidence on record and analyzed the impugned judgment. The FIR, Ext.6 is proved through P.W.5, the victim/prosecutrix, in the FIR, has stated that on 27.07.2006 in the night about 11.00 P.M. she was alone in her house and at that time two young men entered into her house by breaking the door and demanded her to supply girls. She said she cannot arrange girls for them. Both the accused forced her and committed rape on her and she was also beaten up mercilessly. While this act was going, somehow she pushed them and came out from the house and bolted the door from outside and went to Raghunathpalli P.S. and gave a report there. The officers of Raghunathpali P.S., namely, P.W.7 came to the spot and apprehended Page 7 of 12 both the accused persons from inside the house of the victim. The prosecutrix was examined as P.W.5. She has narrated the incident as has been narrated in the FIR though with certain variations. She in her testimony has stated as under: “1. I know the two accused persons standing inside the dock. About five to six months back I was staying at C/3M-44 at Chhend R.D.A. Colony along with my husband. On that day, my husband was not present and I was alone in my house. on that day during night at about 11 „O‟ clock while I was present in my house alone, these two accused persons entered inside my house forcibly and asked me to provide the girl to them. When I refused they forcibly laid me on the cot and one after another committed sexual intercourse with me. They did not insert their private part inside my private part but penetrated their private part inside the gap of two thigh from the front side, and they discharge there. They also after committing same assaulted me and I came outside. I closed the outer door and put the lock outside when they were present inside the house. 2. I came to Raghunath Palli P.S. I saw a person outside my house. I reported the same orally at the R.N. Palli P.S. Thereafter police came with me and caught the accused (present two accused persons) from my house. Thereafter, the police advised me to lodge the FIR, at Mahila P.S. within Rourkela. On the next day, at about 10 A.M. I went to Mahila P.S. and submitted a written FIR before the O.I.C. Mahila P.S. I wrote the FIR in my own hand and submitted before the IIC. Ext.6 is the said FIR written by me and Ext.6/1 is my signature thereon.” Page 8 of 12 12. From the evidence of the victim, it is apparent that she has wriggled out of her version in so far as the allegation of rape is concerned. However, even after sustaining extensive cross examination, she was consistent on the fact that the appellants were locked from outside and she went to Raghunathpali P.S. to call the police. This aspect of the matter stands corroborated with the testimony of P.W.7, who was an officer of Raghunathpali P.S. He has stated in his testimony that on 27.07.2006 he was in-charge of Raghunathpali P.S. when the informant came to the police station at 11.45 P.M. and he made a dairy entry on the basis of oral report. He also stated that the victim P.W.5 had informed him that the appellants had forcibly entered inside her house and pushed her and somehow she got escaped from the house by locking them inside. It appears that P.W.7 proceeded to the spot along with victim lady after making the S.D. Entry No.631 vide Ext.10. He stated that he found the two appellants standing inside the house. He apprehended them and brought them to the police station. He further stated that he advised the victim to registered the case in the Rourkela Mahila P.S. under whose jurisdiction the offence has been committed. Therefore, on the next day, Page 9 of 12 i.e., on 28.07.2006 the FIR was registered in the Mahila Police Station. P.W.6 is the I.O., who in her statement has stated that she has taken the appellants to custody from Raghunathpali P.S. From the evidence of P.Ws.5, 6 and 7, it is apparent that the appellants were present in the house of the victim (P.W.5) on the date of occurrence and they were locked inside the house and on the basis of the oral report, a station dairy entry was made and P.W.7 apprehended them from the house of the victim. Accordingly they were arrested on the spot on the subsequent day and they were handed over to P.W.7, the I.O. of the case. This part of the evidence is unshaken even after an attempt was made by the defence to extensively cross-examine the witnesses. However, fact remains that narration of the occurrence by the prosecutrix at the time of registration of FIR, thereafter when she gave oral report before the Raghunathpali P.S. and subsequently when came to the doctor are varied in so far as the allegation either rape or regarding outraging the modesty is concerned. That part of the evidence is not inspiring confidence to be believed, particularly when she had refused to undergo medical test and when she went to Raghunathpali P.S. In the oral narration of the event Page 10 of 12 she has stated nothing regarding outraging of modesty or regarding the rape. 13. In the light of the evidence of all the witnesses taken into consideration in unison, I am of the view that that the charge under section 354 of IPC could not be proved by the prosecution beyond all reasonable doubt. Hence, the appellants are entitled to an acquittal in so far as the said charge is concerned. However, in so far the charge under section 457 of IPC is concerned, the evidence being unimpeachable, trustworthy and consistent, I affirm the conviction on that count accordingly. 14. Mr. Panda, learned counsel for the appellants at this stage, submits that in the event this Court is sustaining the conviction recorded by the trial court, in that case, lenient view should be taken against the appellants while imposing sentence particularly because the appellants have already undergone imprisonment for seven months and twenty days. Page 11 of 12 15. The incident relates back to the year 2006. At that point of time the appellants were young in their early twenties and by the lapse of one and half decades in between the appellants attained their early fifties and they are well established in their real life and they do not have any criminal antecedents. In that view of the matter, it is a fit case where the sentence imposed by the learned trial court is liable to be varied keeping in mind that the appeal has been pending since 2007, whereas the conviction was recorded by the learned trial court vide order dated 24.01.2007. Accordingly, I modify the sentence of the appellants to that of the period they have already undergone, however, I impose a fine of Rs.5000/- (Rupees five thousand) on each, in default, to undergo S.I. for two months each. The fine amount to be deposited by the appellants shall be disbursed to the victim, P.W.5 in accordance with the provisions of Section 357 Cr.P.C. 16. The CRLA is accordingly partly allowed. Signature Not Verified The High Court of Orissa, Cuttack Dated the 31st July, 2025/Ashok 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 12 of 12 (S.S. Mishra) Judge