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Santosh Routray vs State Of Odisha on 13 December, 2019

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.

– Versus-
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.

Advocate.

PRESENT:

THE HONOURABLE DR. JUSTICE A. K. MISHRA.

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Date of hearing and Judgment : 13.12.2019

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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.

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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

implication.

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
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investigating officer and P.W.1, P.W.7 and P.W.8 are independent

witnesses.

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.
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5. Learned Addl. Govt. Advocate, Mr. P.K. Patnaik supported

the judgment of conviction and sentence on the grounds stated

therein.

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.

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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.
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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
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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
her.”

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.

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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

unaltered.

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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

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