IN THE HIGH COURT OF ORISSA, CUTTACK

CRIMINAL APPEAL No. 263 Of 1991

An appeal under section 374(2) of the Code of Criminal
Procedure from the judgment dated 30.09.1991 passed by the
Addl. Sessions Judge, Sambalpur in Sessions Trial No.47/21 of
1991.
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Dina @ Dinabandhu
Pradhan and Another ……… Appellants

-Versus-

State of Orissa ……… Respondent

For Appellants: – Mr. Bijaya Kumar Ragada

For Respondent: – Mr. Priyabrata Tripathy
Addl. Standing Counsel
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P R E S E N T:

THE HONOURABLE MR. JUSTICE S.K. SAHOO

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Date of Hearing and Judgment: 04.01.2018

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S. K. SAHOO, J. The appellants Dina @ Dinabandhu Pradhan and Kapi

@ Kapila Pradhan faced trial in the Court learned Addl. Sessions

Judge, Sambalpur in Sessions Trial No. 47/21 of 1991 for offence

punishable under sections 376/34 of the Indian Penal Code on
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the accusation that on 04.10.1990 at about 12 noon at

Ganjermal forest, they committed rape on the victim (P.W.1) in

furtherance of their common intention.

The learned trial Court found the appellants guilty

under section 354 of the Indian Penal Code and accordingly

convicted thereunder imposing sentence on each of them to

suffer rigorous imprisonment for a period of two years.

2. The prosecution case, in short, is that on 04.10.1990

the victim had been to tend cattle towards the river side where

both the appellants were also tending cattle at a nearby place. At

about 12 noon, the appellant Dinabandhu came near the victim

and told her to allow him to enjoy with her for some time to

which the victim refused. Then the appellant Dinabandhu

dragged the victim by holding her hand to a low lying land by the

side of the river. The victim protested and struggled to escape

but the appellant Dinabandhu fouled her as a result of which she

fell down on the ground. When the victim raised alarm, the

appellant Kapila caught hold of her hand and told her not to

shout and shut her mouth by means of Saree which the victim

was wearing. The appellant Dinabandhu first committed rape on

the victim and then the appellant Kapila also committed rape on

the victim. After committing rape, both the appellants left the
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spot and the victim returned back to her home and narrated the

incident before her mother (P.W.2). The victim and her mother

approached the Ward member of the village namely Biranchi

Pradhan (P.W.3) and told him about the incident. A meeting was

convened in the village and the village gentlemen attended the

meeting but since most of the villagers had consumed liquor, the

meeting could not be held on that day. After a few days, the

meeting was again held but the appellants did not attend the

meeting. The gentlemen imposed a fine of Rs.300/- on the

appellants. The appellants paid the fine amount to the gentlemen

but they did not give such amount to the victim for which on

27.10.1990 the victim went to Katarbaga police station and orally

reported the matter before the officer in charge of the police

station namely Abhiram Kar (P.W.7) which was reduced to

writing, on the basis of which Katarbaga P.S. Case No. 94 of

1990 was registered under sections 376/34 of the Indian Penal

Code.

P.W.7 took up investigation of the case. He examined

the victim and her mother and recorded their statements, visited

the spot and seized the broken pieces of bangles under seizure

list Ext.1/2. He examined the other witnesses, arrested the

appellants and forwarded them to Court on 29.10.1990. The
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victim girl was sent for medical examination. The Investigating

Officer made certain query to the Medical Officer, Sambalpur. He

received the medical examination report of the victim as well as

of the appellants. On completion of investigation, charge sheet

was submitted on 23.01.1991 under sections 376/34 IPC.

3. The defence plea of the appellant Kapi @ Kapila

Pradhan is that there was a marriage proposal between him and

the victim and since he did not agree to marry the victim

suspecting her character, a false case has been foisted against

him.

The defence plea of appellant Dina @Dinabandhu

Pradhan is one of denial.

4. After filing of charge sheet, the case was committed

to the Court of Session for trial after observing due committal

procedure and it was transferred to the learned trial Court where

charge under sections 376/34 of the Indian Penal Code was

framed on 09.05.1991. Since the appellants refuted the charge,

pleaded not guilty and claimed to be tried, the sessions trial

procedure was resorted to prosecute them and establish their

guilt.

5. In order to prove its case, the prosecution examined

seven witnesses.

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P.W.1 is the victim. She is the informant in the case.

P.W.2 Gharamani Bag is the mother of the victim and

she stated about the disclosure made by the victim on the date

of occurrence relating to commission of rape on her by both the

appellants and also about the meeting held in that connection.

P.W.3 Biranchi Pradhan and P.W.4 Sambhulal

Pradhan did not support the prosecution case for which they

were declared hostile.

P.W.5 Biranchi Narayan Padhi was the Medical

Officer, Circle Jail, Sambalpur who examined both the appellants

and found them capable of committing sexual intercourse but did

not find any mark of injury on their private parts. He proved the

medical examination reports vide Exts. 2 3.

P.W.6 Dr. Geetanjali Rath was the lady Asst.

Surgeon, Sambalpur Headquarters Hospital and she examined

the victim and proved her report Ext.4. She also answered to the

query made by the Investigating Officer and the query report has

been marked as Ext.7

P.W.7 Abhiram Kar was the officer in charge of

Katarabagh Police Station who is the Investigating Officer.

The prosecution exhibited ten documents. Ext.1/2 is

the seizure list, Exts. 2 3 are the medical examination reports
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of the appellants, Ext.4 is the medical examination report of the

victim, Ext.5 is the report of the pathologist, Ext.6 is the report

of the radiologist, Ext.7 is the query report of P.W.6, Ext.8 is the

first information report, Ext.9 is the statement of P.W.3 before

the Investigating Officer and Ext.10 is the statement of P.W.4

before the Investigating Officer.

The prosecution also proved the broken bangles as

M.O.I.

6. The learned trial Court after analysing all the

evidence on record has been pleased to hold that since the victim

had stated that she was in a cross legged position at the time of

occurrence and continued to be lying in such position, it ruled out

the possibility of the victim being raped. It was further held that

the age of the victim on the date of occurrence was more than

18 years and the conduct of the victim in coming to her house

and narrating the incident before her mother rules out the

possibility of consent of the victim for the occurrence. It was

further held that the absence of any injury on the person and

private part of the victim cannot be used to discredit her

testimony particularly when she was examined after a long lapse

of time. The learned trial Court further held that the delay in

lodging the first information report has been properly explained.
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7. Mr. Bijaya Kumar Ragada, learned counsel appearing

for the appellants contended that the occurrence in question took

place on 04.10.1990 and the first information report was lodged

on 27.10.1990 which was more than three weeks after the

alleged occurrence and delay in lodging the first information

report has not been satisfactorily explained and therefore, the

possibility of an exaggerated or concocted story being put forth

by the prosecution cannot be ruled out. It is further contended

that when the learned trial Court has disbelieved the commission

of the major offence i.e. under section 376 of the Indian Penal

Code, the conviction of the appellants under section 354 of the

Indian Penal Code basing on the self same evidence is not

justified. It is further contended that even if this Court upholds

the conviction of the appellants under section 354 of the Indian

Penal Code, since during investigation as well as during pendency

of the appeal, the appellants have remained in custody for a

substantial period, the sentence be reduced to the period already

undergone.

Mr. Priyabrata Tripathy, learned Addl. Standing

Counsel on the other hand supported the impugned judgment

and contended that the delay in lodging the first information

report in a case of this nature is not fatal to the prosecution and
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moreover the victim and her mother have stated as to how they

reported the matter before the Ward member and the meetings

were convened in the village on two occasions and how the fine

amount which was imposed by the gentlemen was not paid to

the victim for which the first information report was lodged and

therefore, the delay, if any, has been satisfactorily explained.

The learned counsel for the State further contended that the

conduct of the appellants at the time of the occurrence clearly

makes out the ingredients of the offence under section 354 of the

Indian Penal Code and the sentence which has been imposed

cannot be said to be excessive in the facts and circumstances of

the case and therefore, no interference is called for.

8. Charge has been framed against the appellants under

sections 376/34 of the Indian Penal Code. When it is the

prosecution case that both the appellants committed rape on the

victim on 04.10.1990 in furtherance of their common intention,

charge should have been framed under section 376(2)(g) of the

Indian Penal Code which deals with ‘gang rape’.

In case of Ashok Kumar -Vrs.- State of Haryana

reported in A.I.R. 2003 S.C. 777, it is held as follows:-

8. Charge against the appellant is under Section
376(2)(g) IPC. In order to establish an offence
under Section 376(2)(g) IPC, read with
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Explanation I thereto, the prosecution must
adduce evidence to indicate that more than one
accused had acted in concert and in such an
event, if rape had been committed by even one,
all the accused will be guilty irrespective of the
fact that she had been raped by one or more of
them and it is not necessary for the prosecution
to adduce evidence of a completed act of rape
by each one of the accused. In other words, this
provision embodies a principle of joint liability
and the essence of that liability is the existence
of common intention that common intention
presupposes prior concert which may be
determined from the conduct of offenders
revealed during the course of action and it could
arise and be formed suddenly, but, there must
be meeting of minds. It is not enough to have
the same intention independently of each of the
offer. In such cases, there must be criminal
sharing marking out a certain measure of
jointness in the commission of offence.”

In case of Hanuman Prasad and Ors. -Vrs.- State

of Rajasthan reported in (2009) 42 Orissa Criminal

Reports 284, it is held as follows:-

“7. The important expression to attract Section
376(2)(g) is `common intention’. The essence of
the liability in terms of Section 376(2) is the
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existence of common intention. In animating the
accused to do the criminal act in furtherance of
such intention, the principles of Section 34 IPC
have clear application. In order to bring in the
concept of common intention, it is to be
established that there was simultaneously
consensus of the minds of the persons
participating in the act to bring about a
particular result. Common intention is not the
same or similar intention. It presupposes a prior
meeting and pre-arranged plan. In other words,
there must be a prior meeting of minds. It is not
necessary that pre-concert in the sense of a
distinct previous plan is necessary to be proved.

The common intention to bring about a
particular result may well develop on the spot as
between a number of persons which has to be
gauzed on the facts and circumstances of each
case.”

Section 376(1) of the Indian Penal Code prescribes

punishment for rape which shall not be less than seven years but

which may extend to ten years or which may be for life and shall

also be liable to fine. Section 376(2) of the Indian Penal Code on

the other hand makes certain categories of serious cases of rape

as enumerated therein attract more severe punishment. One of

them relates to ‘gang rape’. The minimum punishment prescribed

for such offence is ten years which may be for life and the
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accused shall also be liable to fine. This is how the words “except

in the cases provided for by sub-section (2)” occur in section

376(1) of the Indian Penal Code. The Explanation 1 to section

376(2) of I.P.C. indicates that when one or more persons act in

furtherance of their common intention to rape a woman, each

person of the group shall be deemed to have committed ‘gang

rape’. By operation of the deeming provision, a person who has

not actually committed rape is deemed to have committed rape

even if only one member of the group in furtherance of the

common intention has committed rape. Therefore, in a case of

gang rape, the proof of completed act of rape by each of the

accused on the victim is not required. Once it is established that

accused persons who are two or more in number had acted in

concert and thereafter, the victim was actually raped by one of

them then all of them can be prosecuted and even held guilty for

‘gang rape’. Therefore, charge should have been appropriately

framed under section 376(2)(g) of the Indian Penal Code.

9. Coming to the evidence of the victim, she has

narrated the incident in detail. She has stated in her chief

examination that the appellant Dinabandhu dragged her by

holding her hand and took her to a low lying land by the side of

the river and when she protested and struggled to escape,
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appellant Dinabandhu fouled her for which she fell down and

then she raised alarm. Then the appellant Kapila caught hold of

her hand and asked her not to shout and shut her mouth by the

edge of her Saree. She has further stated that the appellant

Dinabandhu opened his half pant and pulled her saree and saya

up to her waist and then committed sexual intercourse with her

and thereafter, the appellant Kapila also committed sexual

intercourse with her and at that time the appellant Dinabandhu

was holding her head and gagging her mouth for which she could

not raise an alarm. In the cross-examination, the victim has

stated that when the appellant Dinabandhu came towards her

while she was tending cattle, she did not suspect his movement.

She further stated that the appellant Dinabandhu physically lifted

her by keeping her on his shoulder and then threw her at the

spot where she was ravished. She further stated that she made

an attempt to runaway but the appellant Dinabandhu pounced

upon her and at that point of time, she struggled to escape

herself but the appellant Dinabandhu opened his pant and

appellant Kapila caught hold of her hands. She has further stated

that appellant Kapila caught hold of her right hand by his right

hand and her left hand by his left hand but neither of the

appellants caught hold of her legs and that she was struggling by
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her legs. The victim has further stated in the cross-examination

that when appellant Dinabandhu opened his pant, she could

know that he would have sexual intercourse with her, so at that

time she crossed both of her legs. She further stated that when

appellant Dinabandhu came to penetrate his penis into her

vagina, she tightened her legs and stifled her vagina. She further

stated that till both the appellants finished their sexual

intercourse with her, she was lying in a crossed legged position.

She further stated that neither the appellant Kapila nor the

appellant Dinabandhu squeezed her breast and none of them

touched her breast nor gave kisses on her cheek nor snatched

her blouse. The learned trial Court held that the position in which

the victim was lying at the time of occurrence rules out the

possibility of her being raped and accordingly, the offence of rape

was disbelieved. It appears from the evidence that the victim

was aged about twenty years at the time of occurrence and even

though according to her evidence, her hands were caught hold of

by one of the accused while the other was committing rape on

her but it is apparent that none of the accused was holding her

legs and in order to prevent sexual intercourse by the appellants,

she not only crossed both her legs but also tightened her legs

and stifled her vagina and she was in such a position till end. She
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has not stated that any of the appellants tried to separate her

legs to commit sexual intercourse.

The victim has stated that after the appellant Kapila

had sexual intercourse with her, he cleaned his semen by her

saya from her private part as well as from his private part and

the semen fell on her saree and saya. The victim has further

stated that he showed her saree, saya and kacha to her mother

and so also to the Ward member and she kept those saree, saya

and kacha in her house to show it to the police, if necessary. The

wearing apparels of the victim girl were neither seized nor sent

for chemical analysis.

10. So far as the delay in lodging the first information

report is concerned, it appears that immediately after the

occurrence, the victim came to her house and narrated the

incident before her mother and both of them went to the Ward

member and disclosed about the occurrence. The ward member

who has been examined as P.W.3 has not supported the

prosecution case. The victim and her mother have stated that a

meeting was convened in the village on the date of occurrence

but no decision could be taken and four days thereafter, another

meeting was held and even though the appellants did not attend

that meeting but their fathers attended the meeting and the
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panchayat imposed a fine of Rs.300/- on the appellants. It is

further stated by the victim and her mother that the panchayat

members realized the fine amount of Rs.300/- from the

appellants but refused to give that money to the victim and

accordingly, the first information report was lodged. In view of

the nature of accusation and the statements of the victim and

her mother regarding convening of meeting in the village on two

occasions to decide the matter, imposition of fine on the

appellants, non-payment of fine to the victim, I am of the view

that the delay in lodging the first information report has been

satisfactorily explained. Merely because P.W.3 has not supported

the prosecution case, the entire prosecution case cannot be

disbelieved.

11. The doctor who had examined the victim on

06.11.1990 which is a month after the incident has stated that

the hymen of the victim was ruptured and there was an old tear

in her hymen and she found no other injury present in her

private part or other parts of the body. The ossification test was

conducted and the doctor opined that the probable age of the

victim would be above eighteen and below twenty years. The

doctor gave her opinion that the old tear mark which was found

in the hymen of the victim was due to sexual intercourse.
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However in the cross-examination, she has stated that once the

tear in the hymen is healed up, it is not possible to say, the exact

time or as to how many days back there was tear. She further

stated that in absence of dead or alive spermatozoa, it cannot be

said definitely whether there was sexual intercourse or not. The

vaginal swab of the victim was examined and the report vide

Ext.5 indicates that no living or dead spermatozoa was present.

Therefore, not only there is delay in the medical examination of

the victim but also the medical examination report no way helps

the prosecution.

12. Coming to the offence under section 354 of the

Indian Penal Code, there are ample materials available on record

to show that the appellants outraged the modesty of the victim.

The essential ingredients of the offence under section 354 of the

Indian Penal Code are that the assault must be to a woman or

the accused must have used criminal force on the woman and

such assault or criminal force must have been used on the

woman intending thereby to outrage her modesty or having

knowledge that her modesty will be outraged. The culpable

intention of the accused is the crux of the matter and the

reaction of the woman is also relevant. The manner in which the

victim was dragged, lifted, stripped off her clothing and some
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immoral act was committed with her in spite of her protest, even

if the charge under section 376 of the Indian Penal Code is found

to be not proved by the learned trial Court and neither the State

of Odisha nor the victim has challenged the acquittal of the

appellants of such offence but there are sufficient materials on

record against the appellants for commission of offence under

section 354 of the Indian Penal Code.

The learned trial Court has imposed the maximum

punishment prescribed for such offence which is two years. The

appellants were forwarded to Court on 29.10.1990 and they were

released on bail by the learned trial Court on 27.04.1991. During

pendency of the appeal before this Court, non-bailable warrant of

arrest was issued against both the appellants and the learned

trial Court was directed to execute the non-bailable warrant of

arrest, by virtue of which the appellants were taken into custody

on 11.05.2004 and they were released on bail by this Court on

26.06.2004. Therefore, it appears that the appellants have

remained in custody in connection with this case for seven

months and few days. The occurrence in question took place in

the year 1990 and in the meantime more than twenty seven

years have passed. Both the appellants were aged about twenty

years when the crime was committed. Therefore, at this stage, it
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would not be proper to send the appellants again to jail custody

to serve out the remaining period of sentence.

13. In view of the foregoing discussions, while confirming

the order of conviction of the appellants under section 354 Indian

Penal Code, the sentence imposed by the learned trial Court is

reduced to the period already undergone.

With the modification of the sentence, the Criminal

Appeal stands dismissed.

……………………………

S. K. Sahoo, J.

Orissa High Court, Cuttack
The 4th January, 2018/Kabita/Sukanta