HIGH COURT OF ORISSA: CUTTACK.
CRLA No.521 of 2014
An application under Section 374(2) Cr.P.C. from the judgment of
conviction and sentence dtd.12.09.2014 of learned 3rd Addl. Sessions
Judge, Cuttack in Sessions Trial Case No.317 of 2012/98 of 2013.
Santosh Routray ………. Appellant.
State of Odisha ………. Respondent.
Counsel for Appellant :M/s.Goutam Chandra Rout, D. K. Swain,
B. N. Mohanty, B. Tripathy and N. B.
Sahoo, M/s. Subash Chandra Puspalaka,
A. K. Tarai, T. Priyadarshini, S. Das and S.
S. Routray; and M/s. R. K. Mohapatra, N.
Mohapatra and M. Jena.
Counsel for Respondent :Mr. Prem Kumar Pattnaik, Addl. Govt.
THE HONOURABLE DR. JUSTICE A. K. MISHRA.
Date of hearing and Judgment : 13.12.2019
Dr. A. K. Mishra, J. In this appeal the sole appellant has assailed his conviction
and sentence of R.I. of 7 (seven) years and fine of Rs.10,000/-, in
default, further R.I. of 6 (six) months for offence U/s.376 SectionI.P.C. and R.I.
of 2 years and fine of Rs.2000/-, in default, further R.I. of 3 months for
offence U/s.451 SectionI.P.C., passed by learned 3rd Addl. Sessions Judge,
Cuttack in his judgment dtd.12.09.2014 in Sessions Trial No.317 of
2012 / 98 of 2013.
2. The prosecution case in short is that on 16.5.2012 at about
12.30 A.M. (night) in village Harianta the victim (P.W.5) was sleeping
in one room in her house. The accused had come to her sister’s house in
that village. Accused entered inside the room where the victim was
sleeping and forcibly committed rape. She cried. The accused assured
her to marry but subsequently left the village. On that night, the victim,
a minor girl, disclosed about the occurrence before her mother (P.W.4).
The father of the victim had been to outside. On being informed, he
advised to contact her uncle (P.W.3). The victim lodged F.I.R. (Ext.4) on
19.5.2012. Sadar P.S. Case No.103 of 2012 was registered, investigation
was ensued. In course of investigation, the Admission Register of
Kalandi Naik High School was seized. Doctor (P.W.2) conducted medical
examination of the victim. After completion of investigation charge-sheet
was filed. The case was committed to the Court of Session. Accused
faced trial for offence U/ss.376 and 451 of SectionI.P.C.
2-A. The plea of defence was denial simplicitor and false
2-B. Prosecution examined 9 witnesses in all while defence
examined 2. The victim is P.W.5, P.W.3 is the paternal uncle of the
victim, P.W.4 is the mother of the victim, P.W.2 is the doctor, P.W.6 is
the headmaster who proved the school admission register, P.W.9 is the
investigating officer and P.W.1, P.W.7 and P.W.8 are independent
The F.I.R., medical examination report, school admission
register and seizure lists, etc. were marked Ext.1 to Ext.13.
The father and sister of accused are examined as D.W.1 and
D.W.2 in support of the plea that the victim was kidnapped by another
boy, namely Manoj and the present appellant was falsely roped.
The petition U/s.57 Cr.P.C. as to illegal detention of
accused by police is marked as Ext.A.
3. Learned trial court believed the evidence of mother (P.W.4),
victim (P.W.5), School Admission Register (Ext.5) and School Leaving
Certificate (Ext.7) to record a finding that the year of birth of the victim
was 1997. The medical evidence of P.W.2 that the victim was aged about
17 to 19 years was not accepted as opinionative in nature. Learned trial
court also found that the victim was a reliable witness and held the
accused guilty for the offence U/s.376 and 451 of the SectionI.P.C. and passed
sentence as stated above.
4. Learned counsel for the appellant by placing the judgment
in extenso and the evidence of victim, submitted that the victim was a
major and she having consented learned trial court has committed error
in appreciating the evidence to record finding of guilty.
5. Learned Addl. Govt. Advocate, Mr. P.K. Patnaik supported
the judgment of conviction and sentence on the grounds stated
6. Keeping the contentions of learned counsel for the
appellant, I carefully peruse the evidence on record. The victim is
P.W.5. She is found to have mentioned her age as 19 years in the F.I.R.
(Ext.4) but clarified the same in her cross-examination that as police
officer (Didi) advised her to do so, otherwise the report would not be
accepted, she mentioned her age as 19 years. On such clarification, the
evidence of Head Master (P.W.6) is required to be looked into. He proved
the Admission Register (Ext.5) wherein the date of birth of the victim
was entered as 1.1.1997 vide Sl. No.84/1637 dated 18.04.2009 and it is
mentioned that victim discontinued the School from Class-X. The entry
was made in an undisputed period which corroborates the evidence of
mother (P.W.4) that the victim was born in the Odia Calendar “Pousa”
1997 and prosecuted her study up to Class-X in Kalandi NaikHigh
School. Nothing material has been elicited in the cross-examination
either from the mother or from the Head Master to disbelieve those
testimonies in this regard. So fact remains proved that the victim was a
minor at the time of incident. Hence the finding of the trial court in this
regard is hereby confirmed.
7. The victim has elaborately stated as to how the accused
entered inside her bedroom and after undressing, committed
rape, subsequently when she cried the accused gave assurance to marry
her. The factum of incident gets support of her disclosure before her
mother and subsequently by the mother before Grama Rakshi and her
uncle (P.W.3). Most importantly, the Doctor examined the victim after 72
hours and found old tears in the hymen which corroborates the factum
of rape as alleged by the victim with regard to the time of incident.
There is no material available to disbelieve the testimony of
the victim. Learned lower court has rightly appreciated her evidence as
trustworthy and reliable.
7-A. Even if the victim would be found to be a major girl, her
consent having been taken by force, the accused cannot be benefited in
view of Section 114-A of the Evidence Act.
The victim has unequivocally testified that accused had
gagged and forcibly undressed her to have sexual intercourse, and when
she cried, he threatened to kill her and then assured her that he would
consult his sister to enter marriage with her and such sexual
intercourse was against her wish. The victim (P.W.5) has vividly
explained the occurrence in her cross-examination para -8.
On the conspectus of the legal evidence adduced, it is
clearly proved that accused had committed sexual intercourse with
the victim on the alleged date and place. As to whether it was without
the consent of the victim, the presumption against accused is available
U/s.114-SectionA of the Evidence Act because the victim has categorically
stated that she had no consent for such sexual intercourse.
The provision reads thus:-
“Section 114 A – Presumption as to the absence of consent in
certain prosecutions for rape. – In a prosecution for rape
under Cl.(a) or Cl.(b) or Cl.(d) or Cl.(e) or Cl.(g) of sub-section
(2) of Section 376 of the Indian Penal Code (45 of 1860),
where sexual intercourse by the accused is proved and the
question is whether it was without the consent of the woman
alleged to have been raped and she states in her evidence
before the court that she did not consent, the Court shall
presume that she did not consent.”
In the decision report in (2006) II S.C.C. 615 Yedla
Srinivasa Rao Vrs. State of Andhra Pradesh Hon’ble Apex Court has
held as follows:-
“If sexual intercourse has been committed by the accused
and if it is proved that it was without the consent of the
prosecutrix and she states in her evidence before the court
that she did not consent, the court shall presume that she did
not consent. Presumption has been introduced by the
legislature in the SectionEvidence Act looking to atrocities committed
against women and in the instant case as per the statement
of PW, she resisted and she did not give consent to the
accused at the first instance and he committed the rape on
her. The accused gave her assurance that he would marry
her and continued to satisfy his lust till she became pregnant
and it became clear that the accused did not wish to marry
8. On independent analysis of evidence on record as an
appellate court, the defence plea is found to have not rebutted the
presumption U/s.114-SectionA of the Evidence Act and the victim, as a result
is found to have been raped by the accused after committing house
trespass. Thus, the prosecution is found to have proved the offence
U/ss.376 and 451 SectionI.P.C. beyond reasonable doubt.
The learned Trial Court has not committed any error in
convicting the accused – appellant under those sections.
9. With regards to sentence, learned counsel for the appellant
submitted that the appellant is a young boy and a boy of poverty
stricken. He has further submitted that accused was a student by the
time of alleged incident and has already spent 6 years in jail and his
poverty condition should be considered as a special ground to reduce
the sentence already undergone.
Learned Addl. Government Advocate submitted that the pre
amended proviso to reduce the minimum sentence on adequate and
specific ground is available in this case.
9-A. The incident took place on 16.5.2012. The amendment to
Section 376 came into force by Act 13 of 2013 with effect from
03.02.2013. Thus, the proviso to Section 376 I.P.C. is applicable to this
case which provides that “the court may, for adequate and specific
reasons to be mentioned in the judgment impose a sentence of
imprisonment for a term less than 7 years.”
Now, on facts, the accused was 24 years old. The victim had
completed prosecuting her study in Class-X by the time of incident. The
accused has already spent 5 years 6 months incarceration. Keeping the
convict for 1 year more in jail custody would not affect the interest of
victim in any manner. The accused suffers from poverty and has already
lost his student career. Taking the societal condition as well as the age
and factum of family background, I consider the same to be adequate
and special reason to reduce the sentence to 6 years R.I. instead of 7
years R.I. So far as fine is concerned, fine of Rs.10,000/- amount
imposed for offence U/s.376 SectionI.P.C. is reduced to Rs.2000/-, in default
further R.I. of 3 months. All other sentence, as stated, shall remain
Hence the appeal is allowed in part. The conviction of
appellant U/s.376 and 451 SectionI.P.C. is upheld. He is sentenced to
undergo R.I. for 6 (six) years and to pay a fine of Rs.2000/-, in default
R.I. for 3 months for offence U/s.376 SectionI.P.C. and to undergo R.I. for 2
(two) years and to pay a fine of Rs.2000/-, in default R.I. for 3 months
for offence U/s.451 SectionI.P.C. The substantive sentence are to run
concurrently with privilege to set off U/s.482 SectionCr.P.C. as ordered by
learned Trial Court.
L.C.Rs. be returned immediately.
Dr. A. K. Mishra, J.
Orissa High Court, Cuttack,
Dated the 13th December , 2019/MKP