The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.185 of 1999 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Dulia @ Dilip Kumar Nayak & others ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. Debi Prasad Pattnaik, Advocate For the Respondent : Mrs. Sarita Moharana, Additional Standing Counsel CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 21.08.2025 :: Date of Judgment: 09.09.2025 S.S. Mishra, J. The present criminal appeal is directed against the judgment dated 26.07.1999 passed by the learned Additional Sessions Judge, Kendrapara in S.T. Case No.5/25 of 1997, arising out of G.R. case No. 794 of 1996, whereby the present appellants (accused Nos. 1 and 3) were convicted under Section 376(2)(g) IPC (gang rape) and sentenced to undergo rigorous imprisonment for seven years each, while being acquitted of the charge under Section 379 IPC. 2. The Appellant No.2 has already expired as per the order dated 22.11.2022. The appeal qua him stood abated in the absence of any application U/S. 394 Cr.P.C. by his Legal Representatives or next friend. 3.
Legal Reasoning
Heard Mr. Debi Prasad Pattnaik, learned counsel, for the appellants and Mrs. Sarita Moharana, learned Additional Standing Counsel for the State. 4. The prosecution case in brief is that on 1.08.1996 at about 8–9 p.m., the victim girl (P.W.4), then aged about 17 years and physically handicapped, while returning home, halted at a hotel verandah at village Badapalagada due to rain. It is alleged that the victim was served food and later confined in a hotel room. Around midnight, the present appellants, along with co-accused Pradipta (since deceased), entered the room and, in turn, committed rape upon the victim against her will. After the occurrence, while she was being forced out through a window, some villagers surrounded her, and the police arrived, Page 2 of 13 upon which she lodged a First Information Report. It is also alleged that her wristwatch had been taken away by one of the accused. 5. On investigation, the victim was medically examined; her statement under Section 164 Cr.P.C. was recorded; the accused were also medically examined. Upon completion of investigation, charge- sheet was filed for offences under Sections 376(2)(g)/379 I.P.C. On the denial stance of the accused, they were put to trial. 6. The prosecution examined five witnesses. The victim (P.W.4) supported the prosecution in her examination-in-chief on 01.02.1999, implicating the accused, but on the next day during further cross- examination she resiled, attributing her volte face to pressure from her brother-in-law Murali Das. She was declared hostile. 7. The learned trial Court, relying on her initial evidence-in-chief, her statement recorded under Section 164 Cr.P.C. and the medical evidence of P.W.3 indicating multiple abrasions and bruises around the vagina consistent with sexual assault, came to the conclusion that despite hostility in part, the testimony of the prosecutrix, corroborated by medical evidence, proved the charge under Section 376(2)(g) IPC. The Page 3 of 13 charge under Section 379 IPC was not established. Accordingly, the appellants were convicted and sentenced as stated above. The relevant portion of the judgment under challenge is extracted herein below:- that “19. The evidence of the prosecutrix recorded by this court on 1.2.99 proves the prosecution case against the accused persons. Besides the medical evidence also corroborates that there were injuries on the vagina of the prosecutrix which can be caused by sexual assault. Hence the evidence of the prosectrix (p.w.4) as stated in her evidence-in-chief, before being declared hostile by the prosecution and after her cross-examination by the defence, is corroborated by the medical evidence (Ext.4) proved by p.w.3 that the accused persons committed rape on the prosecutrix, a girl of 17 years and caused injuries to her vagina. 20. Coupled to the above circumstance, Ext.11 is the statement of the prosecutrix recorded by the S.D.J.M. Kendrapara on 5.8.96, it is very much clear as to detail particulars of the prosecutrix about being raped by the accused persons. At the last sentence of her statement before the magistrate recorded u/s 164 Cr.P.C., prosecutrix states that two persons namely accused Dhiren and accused Kuna(alias Pradipta) were produced before her and the other accused was not produced by she categorically named the accused persons in her evidence and also in her statement recorded u/s 164 Cr.P.C. (Ext.11) with regard to the accused Dhiren and accused Kuna in connection with the alleged occurrence. Under such circumstances, even though the police. However, Page 4 of 13 the prosetrix has been declared hostile by the prosecution, yet her evidence-in-chief as well as the statement recorded by the Magistrate u/s 164 Cr.P.C. and the medical evidence of p.w.3, if brought together for consideration, cumulative effect of the same proves the prosecution case against the accused persons even though the prosecutrix tuned hostile to the prosecution case, merely absence of semen found by P.W.3 can not cast doubt on the prosecution case as has been held in AIR 1989 SC 702. 21. In the present context, as discussed above, the court has to appraise the evidence to see to what extent the worthy of the evidence of the prosecutrix is to be accepted. Merely because in one respect the court considers it unsafe to rely on the testimony of the witness it does not necessarily follow as a matter of law that it must be discarded all respects as has been reported in A.I.R.1971 S.C. page 2505 (Rai Sing Vs State). Therefore the evidence of the prosecutrix, though hostile to the prosecution, coupled with her statement recorded u/s 164 Cr.P.C. (Ext.11) and the medical evidence of p.w.3 proves the prosecution case against the accused persons beyond reasonable doubt for the offence that the accused persons committed rape in a group to the 17 years old prosecutrix for which they are liable to be convicted u/s 376(2) (g) I.P.C. 22. There is absolutely no iota of evidence against the accused persons that they committed theft anything for which they are not liable for the offence u/s 379 I.P.C. Page 5 of 13
Decision
23. In the result, the accused persons are found guilty only for the offence u/s 376(2) (g) I.P.C. while they are acquitted of the charge u/s 379 I.P.C. and accordingly they are convicted thereunder.” 8. Mr. Pattnaik, learned counsel for the appellants, submitted that the conviction under Section 376(2)(g) IPC is unsustainable in law and fact. The prosecution evidence suffers from material inconsistencies and infirmities. It is argued that the only independent witness (PW1) did not support the prosecution and was declared hostile, while the medical evidence of PW2 and PW3 does not establish sexual intercourse by the appellants, since no injuries, semen, or foreign hair were found on them. Similarly, the medical examination of the victim revealed no recent signs of intercourse, though some abrasions were noted, which could have been otherwise caused. The counsel highlighted that the investigation was defective, as the I.O. failed to conduct a Test Identification Parade, and there was no appropriate dock identification of the appellants during trial. The FIR itself suggests that the victim did not previously know the accused, and her statement regarding the Page 6 of 13 incident was inconsistent, contradictory, and exaggerated, casting serious doubt on her version. 9. It is further contended that the trial court erred in relying upon portions of the hostile testimony of the prosecutrix while discarding her statements favourable to the defence, contrary to settled law requiring careful scrutiny of such evidence. The prosecutrix’s statement under Section 164 CrPC, where she implicated seven persons, appears to have been tutored and does not stand corroborated by any independent witness. The reliance by the trial court on the allegation that the victim was influenced by her brother-in-law to turn hostile was used against the accused without giving them an opportunity to respond under Section 313 CrPC, which vitiates the fairness of the trial. The C.E. report was ignored and forensic evidence did not support the case. In these circumstances, with doubtful identification, absence of medical corroboration, and unreliable testimony of the victim, the counsel urges that the prosecution has failed to prove its case beyond all reasonable doubt and, therefore, the appellants are entitled to the benefit of doubt, setting aside of conviction, and acquittal. Page 7 of 13 10. Mrs. Moharana, learned counsel for the State, contended that the conviction of the appellants under Section 376(2)(g) IPC is fully justified, as the prosecution has proved the case beyond reasonable doubt. It is argued that the prosecutrix, in her F.I.R. statement, the statement recorded under Section 164 Cr.P.C., and examination-in- chief, consistently implicated the appellants, and her subsequent hostility to the prosecution was clearly due to external influence. Her testimony, when read with the medical evidence of PW3 showing fresh injuries on the private parts, strongly corroborates the allegation of forcible gang rape. She further submitted that the law is well settled that the testimony of a prosecutrix, even if partly hostile, can be relied upon to the extent it supports the prosecution and stands corroborated with other materials, especially when corroborated by medical findings. The acquittal under Section 379 IPC is not disputed for want of independent proof, but the conviction under Section 376(2)(g) IPC, along with the minimum sentence imposed, is proper and requires no interference. 11. I have carefully re-appraised the entire evidence on record in the light of the submissions advanced. It emerges from the record that in the Page 8 of 13 very F.I.R. lodged immediately after the occurrence, the victim did not name any of the accused. Her statement under Section 161 Cr.P.C. before the Investigating Officer is also silent as to the identity of the accused. Similarly, her statement recorded before the learned Magistrate under Section 164 Cr.P.C. also lacks any specific reference to the present appellants as perpetrators. Until that stage, there was no identification of the accused. The first occasion where the victim took the names of the accused was only when she entered the witness box before the trial court. 12. The law is well settled that when the accused was not known to the victim previously, identification through a Test Identification Parade (T.I. Parade) is of utmost importance. Failure to hold such parade is a serious lacuna that affects the credibility of identification in the dock for the first time. The Hon’ble Supreme Court in Kanan v. State of Kerala reported in (1979) 3 SCC 319, has categorically held that where a witness identifies an accused for the first time in court, his evidence is absolutely valueless unless such identification is preceded by a properly Page 9 of 13 conducted T.I. Parade. The relevant portion of the aforesaid judgment is extracted herein below:- “It is well settled that where a witness Identifies an accused who is not known to him in the Court for the first time, his evidence Is absolutely valueless unless there has been a previous T. I. parade to test his powers of observations. The Idea of holding T. I. parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T. I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court. In these circumstances, therefore, we feel that it was incumbent on the prosecution in this case to have arranged T. I. parade and get the identification made before the witness was called upon to identify the appellant in the court.” In the case at hand, the Investigating Officer (PW5) himself admitted that no T.I. Parade was conducted. He further deposed that three villagers had allegedly identified the accused in connection with the occurrence, but significantly, not a single one of them was examined by the prosecution. The failure of the prosecution to examine these vital witnesses strikes at the root of the case. Page 10 of 13 13. In so far as P.W.1, the only independent witness, is concerned, he completely failed to support the prosecution and was declared hostile. Thus, there is absolutely no independent corroboration to the version of the victim. 14. Turning to P.W.4, the victim herself, her evidence is highly inconsistent. In her examination-in-chief, she implicated the accused, but in her subsequent cross-examination, she categorically admitted that she could not identify the accused, that they were previously unknown to her, and that the police had shown them to her in the police station. She even admitted that she was tutored by her brother-in-law and the police for deposing in the Court. The incriminating part of her statement came for the very first time in her deposition before the court, and that too was completely shaken in her further cross-examination. What is more serious is that the alleged circumstance of her being pressurised through her brother-in-law Murali Das was never put to the accused in their examination under Section 313 Cr.P.C., depriving them of an opportunity to explain. Thus, the evidence of PW4 cannot be said to be consistent or reliable. Once she wriggled out of her earlier stand and no Page 11 of 13 other corroboration has been brought on record, her testimony alone cannot form the basis of conviction. Extract of her testimony is profitable to be reproduced for true appreciation: “13. The accused persons molested my breast before sexual intercourse was done against me. They molested for about ten minutes before the sexual intercourse. I enjoyed it. Only one person made sexual intercourse with me and I can not identify him. Only one person made sexual intercourse with me and thereafter all left the spot. I did not know the accused before they were shown to my by the police. Police showed them at the P.S. 15. I was brought to the Magistrate by the police for recording my statement u/s 164 Cr.P.C. I was tutored by the police to speak about the occurrence. I had seen the accused persons for the second time in the court when I was deposing in connection with this case. 17. My brother in law Murali Das asked me not to implicate the accused persons in connection with this case while deposing in court. Accordingly, I deposed in the court today. It is not a fact that I have been paid money by the accused persons and that I have been gained over by them in this case.” 15. The medical evidence of PW3 only shows minor abrasions and bruises around the private parts of the victim, which could be caused by Page 12 of 13 intercourse, but notably, no semen was found, nor was there any sign of struggle or injury on the body of the accused. 16. For the foregoing reasons, this Court is of the considered view that the prosecution has failed to prove its case against the appellants beyond all reasonable doubts. The conviction and sentence recorded by the learned Additional Sessions Judge, Kendrapara, in S.T. Case No. 5/25 of 1997 under Section 376(2)(g) I.P.C. cannot sustain and is hereby set aside. The appellants, namely Dulia @ Dilip Kumar Nayak and Dhira @ Dhiren Nayak, are accordingly acquitted of the charge and shall be set at liberty forthwith. Their bail bonds, if any, stand discharged. 17. Accordingly, the Criminal Appeal is allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 9th Day of September, 2025/ Subhasis Mohanty Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 12-Sep-2025 15:56:55 Page 13 of 13