Orissa High Court
Satrughna Samal vs State Of Odisha on 23 August, 2023
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No.24 OF 2015
From judgment and order dated 17.12.2014 passed by the
Assistant Sessions Judge (Special Track Court), Cuttack in S.T.
Case No.178 of 2014.
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Satrughna Samal ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Mr. Sobhan Panigrahi
Amicus Curiae
For Respondent: - Mr. Arupananda Das
Addl. Government Advocate
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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: 23.08.2023
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S.K. SAHOO, J. The appellant Satrughna Samal faced trial in the Court
of learned Assistant Sessions Judge (Special Track Court),
Cuttack in S.T. Case No.178 of 2014 for commission of offences
punishable under sections 366-A/376 of the Indian Penal Code
(hereinafter 'I.P.C.') on the accusation that on 16.08.2010 the
appellant induced the victim girl (P.W.8), who is the minor
daughter of the informant (P.W.3), to go from her house situated
// 2 //
at village Safa under Tangi police station, Cuttack to somewhere
with intent that the victim may be (or knowing that it is likely
that she would be) forced (or seduced) to illicit intercourse and
also committed rape on her.
The learned trial Court vide impugned judgment and
order dated 17.12.2014 though acquitted the appellant of the
charge under section 366-A of the I.P.C. but found him guilty of
the offences punishable under sections 366/376 of the I.P.C. and
sentenced him to undergo rigorous imprisonment for seven years
and to pay a fine of Rs.10,000/-(rupees ten thousand), in
default, to undergo rigorous imprisonment for six months more
for the offence under section 376 of the of the I.P.C. and
sentenced to undergo rigorous imprisonment for four years and
to pay a fine of Rs.5,000/-(rupees five thousand), in default, to
undergo rigorous imprisonment for three months more for the
offence under section 366 of the I.P.C. and both the substantive
sentences were directed to run concurrently.
The prosecution case:
The prosecution case, as per the first information
report (hereinafter 'F.I.R.') lodged by Shri Hemanta Kumar
Mohanty (P.W.3) before the I.I.C., Tangi police station, Cuttack
on 19.08.2010, in short, is that his daughter/victim (P.W.8) was
missing from his house since 16.08.2010 which he had intimated
// 3 //
to the police on 18.08.2010 and thereafter he came to know on
enquiry that the appellant who belonged to Safa Sabar Sahi
along with his brother Mitika Samal, friends Kalia Samal and
Dharama Samal had kidnapped his daughter.
On the basis of such written report, the I.I.C. of
Tangi police station registered Tangi P.S. Case No.116 dated
19.08.2010 against the appellant along with three others under
section 366A/34 of the I.P.C. and directed Shri Narayan Das,
(P.W.10), S.I. of police, Tangi police station to take up the
investigation of the case.
P.W.10, the Investigating Officer during course of
investigation, examined the informant, visited the spot and
prepared the spot map (Ext.7). Thereafter he examined the
mother of the victim and other witnesses. On 28.03.2011, he
apprehended the appellant from his house and rescued the
victim girl from the house of the appellant on the same day and
examined the victim. He also seized the wearing apparels of the
victim so also that of the appellant and prepared the seizure lists
in presence of witnesses marked as Ext.8 and Ext.9 respectively.
He sent the appellant and the victim to F.M.T. Department of
S.C.B. Medical College and Hospital, Cuttack for their medical
examination through escorting constable. On 28.03.2011 at
about 6.30 p.m., he seized the school leaving certificate of the
// 4 //
victim on production by her father and prepared the seizure list
marked as Ext.2/1. On 29.03.2011, the appellant was forwarded
to the Court of J.M.F.C.(R), Cuttack and on the prayer of the
I.O., the statement of the victim was recorded under section 164
Cr.P.C on 29.03.2011 and the very day, the I.O. (P.W.10)
handed over the victim to her father (P.W.3) as per direction of
the learned J.M.F.C.(R), Cuttack. On 09.05.2011, the I.O. sent
the seized sealed packets to S.F.S.L., Rasulgarh, Bhubaneswar
through the Court of J.M.F.C.(R), Cuttack for chemical
examination. On 28.05.2011, he received the medical
examination report of the victim so also of the appellant from the
M.O., F.M.T., S.C.B., Medical College and Hospital, Cuttack. On
30.05.2011, he submitted the charge sheet in the case.
Charges:
The learned trial Court on 08.07.2014 framed the
charges under sections 366-A/376 of the I.P.C. against the
appellant and since the appellant refuted the charges, pleaded
not guilty and claimed to be tried, the sessions trial procedure
was resorted to prosecute him and establish his guilt.
Prosecution witnesses & exhibits:
During course of trial, in order to prove its case, the
prosecution has examined as many as fifteen witnesses.
// 5 //
P.W.1 Susanta Mohanty is the cousin of the victim
who stated that on the fateful day at about 07.30 p.m. to 08.00
p.m., the parents of the victim were searching for her and upon
seeing them, he also joined to trace her out.
P.W.2 Sukanti Mohanty is the mother of the victim
who stated that on the date of incident, the victim had been to
watch a village festival and did not return. She further stated to
have come to know that the appellant kidnapped the victim and
seven months after lodging of the F.I.R., police rescued the
victim from Tangi. She also stated about the disclosure made by
the victim regarding commission of sexual intercourse on her by
the appellant.
P.W.3 Hemanta Kumar Mohanty is the father of the
victim who is also informant of the case. He stated about the
presentation of missing report of the victim in the police station
and disclosure made by the victim about the occurrence.
P.W.4 Gayadhar Behera was working as A.S.I. of
police attached to Tangi police station who is a witness to the
seizure of the school leaving certificate of the victim vide seizure
list Ext.2/1.
P.W.5 Ajaya Kumar Mohanty was working as a
Constable at Tangi police station who stated to have taken the
// 6 //
appellant to S.C.B. Medical College and Hospital, Cuttack as per
direction of the Investigating Officer. He is a witness to the
seizure of biological samples of the appellant vide seizure list
Ext.3.
P.W.6 Mamilata Moharana was working as a
Constable at Tangi police station, Cuttack who stated to have
taken the victim to S.C.B. Medical College and Hospital, Cuttack
as per direction of the Investigating Officer. She is a witness to
the seizure of biological samples of the victim vide seizure list
Ext.4.
P.W.7 Dr. Motirmoy Giri was working as Tutor, F.M.T.
Department, S.C.B. Medical College and Hospital, Cuttack who
examined the appellant on police requisition and found that the
appellant was capable of performing sexual intercourse but there
was no bodily injury found to suggest forcible sexual intercourse
and the genital examination did not reveal any recent sign and
symptoms of sexual intercourse. He proved the medical
examination report of the appellant vide Ext.5.
P.W.8 is the victim. She supported the prosecution
case and stated about the appellant forcibly took her on a bicycle
to his relative's house and committing rape on her. She also
stated that the appellant forced her to sign a document by giving
threats.
// 7 //
P.W.9 Dambarudhara Mohanty is an independent
witness and stated that he came to know from their village
discussion that the appellant kidnapped the victim.
P.W.10 Narayana Das was working as S.I. of police
attached to Tangi police station and he is the Investigating
Officer of the case.
P.W.11 Dr. Purnima Singh was working as the Tutor,
F.M.T. Department, S.C.B. Medical College and Hospital, Cuttack
who examined the victim on police requisition and found that all
the secondary sexual characters were well developed. On genital
examination, she found wide gapping of labia majora and labia
minora was exposed and posterior commissure was obliterated
and there was old tear over the hymen at 5 and 7 O'clock
position and the opening admitted two fingers easily and the
vaginal canal wall rugosity was felt. She proved the medical
examination report of the victim vide Ext.12.
P.W.12 Narendra Kumar Khuntia and P.W.13 Pratap
Kumar Das who were working as A.S.I. and Constable
respectively attached to Tangi police station are witnesses to the
seizure lists vide Ext.3 and 4.
P.W.14 Ramesh Chandra Mohanty is the uncle of the
victim who stated that the appellant took the victim from her
// 8 //
village. He also stated that the victim was aged about sixteen to
seventeen years at the time of incident.
P.W.15 Nilima Khillar was the Headmistress of Nehru
Nodal U.P. School, Safa where the victim was prosecuting her
studies. She produced the school admission register which
contained the date of admission and date of birth of the victim
with other particulars.
The prosecution exhibited thirteen numbers of
documents. Ext.1 is the F.I.R., Ext.2/1 is the seizure list in
respect of school leaving certificate of the victim, Ext.3 is the
seizure list in respect of two seized sealed packets, Ext.4 is the
sealed packets, Ext.5 is the medical examination report, Ext.6 is
the statement of P.W.8 recorded under section 164 Cr.P.C.,
Ext.7 is the spot map, Ext.8 and Ext.9 are the seizure lists in
respect of wearing apparels of the victim and the appellant
respectively, Ext.10 is the seizure list in respect of school leaving
certificate of the victim (with objection), Ext.11 is the forwarding
letter of J.M.F.C.(R), Cuttack, Ext.12 is the report of P.W.11 and
Ext.13 is the page containing Sl. No. 25/1980 of school
admission register of the victim.
Defence plea:
The defence plea of the appellant is one of complete
denial and false implication.
// 9 //
The defence has neither examined any witness nor
exhibited any document.
Findings of the Trial Court:
The learned trial Court, after assessing the oral as
well as documentary evidence on record, has been pleased to
hold that the school leaving certificate indicates the date of birth
as 10.06.1994 and since the case record indicates that the
incident took place on 16.08.2010, the age of the victim as on
the date of incident is appearing to be more than sixteen years
and therefore, the ingredients of the offence under section 366-A
I.P.C. would not be attracted rather the ingredients of the
offence under section 366 of the I.P.C., which is lesser offence to
the offence under section 366-A of the I.P.C., would be
attracted. It has been further held that so far as the question of
kidnapping of the victim is concerned, it appears from the case
record that nobody had seen while the victim was kidnapped
except the victim herself. As a matter of course, there is also no
eye witness available to the incident of rape except the victim for
which the appellant is charged under section 376 of the I.P.C. It
has been further held that the evidence of the seizure witnesses
leaves no iota of doubt regarding the steps taken by the I.O.
during course of investigation of the case and the evidence of
P.Ws. are appearing to be clear, cogent and trustworthy and
// 10 //
hence, reliable. It has been further held that there was no
consent at all on the part of the victim in the entire incident
alleged against the appellant. The defence did not question the
victim regarding the allegation of rape. Therefore, it appeared
from the evidence of the victim that she was forced to move with
the appellant and she was also forced to sexual intercourse by
the appellant. The victim in her evidence further stated that she
was produced before the Court where her statement was
recorded vide Ext.6 which indicates that the appellant forcibly
kidnapped the victim and kept her in the house of his maternal
aunt and thereafter, took her to several places and frequently
committed sexual intercourse with her despite her protest.
Contentions of the Parties:
Mr. Sobhan Panigrahi, learned Amicus Curiae
appearing for the appellant contended that the finding of the
learned trial Court in convicting the appellant under section 366
of the I.P.C. is completely faulty inasmuch as it appears from the
materials on record that the victim had not only attained the age
of discretion but also she moved with the appellant from place to
place including the Court premises and she stayed with him for
seven months and she had never protested before anybody while
accompanying with the appellant nor tried to escape while she
was forcibly taken on a bicycle by the appellant. Learned counsel
// 11 //
further submitted that no date of birth certificate has been
proved and the entry made in the school admission register
which has been proved by the Headmistress of the school being
examined as P.W.15 is not acceptable as she herself stated that
no document was produced at the time of admission of the
victim to establish the authenticity of her date of birth. Learned
counsel further submitted that the parents of the victim are
silent about her date of birth and though the doctor (P.W.11),
who examined her at S.C.B. Medical College and Hospital,
Cuttack, stated that from the radiological examination and from
the physical and dental examination, she came to know that the
victim girl was more than sixteen years and less than seventeen
years but neither the x-ray plates nor the x-ray reports were
proved during the trial and being an opinion evidence, it cannot
be said to be conclusive in nature. Learned counsel further
submitted that when the victim was examined by the doctor, she
described herself to be a married lady and stated to have last
sexual intercourse with her husband one week prior to her
examination. Therefore, if the victim had accepted the appellant
as her husband and was having sexual intercourse with him
regularly, it cannot be said to be a case of rape and therefore, it
is a fit case where benefit of doubt should be extended in favour
of the appellant.
// 12 //
Mr. Arupananda Das, learned Additional Government
Advocate, on the other hand, supported the impugned judgment
and contended that the evidence of the victim is clinching,
trustworthy and even though there is no corroboration from the
medical evidence but the same cannot be a ground to discard
the evidence of the victim in view of the settled position of law
laid down by the Hon'ble Supreme Court and this Court and as
such the appeal should be dismissed.
Analysis of Evidence:
Adverting to the contentions raised by the learned
counsel for the respective parties and coming to the ingredients
of the offence under section 366 of the I.P.C., the section
requires that the prosecution has to prove that the appellant has
kidnapped or abducted the victim girl and such kidnapping or
abduction was made with an intention that the victim might be
compelled or knowing that she is likely to be compelled to marry
any person against her will or in order that she may be forced or
seduced to illicit intercourse or that the appellant knew that she
would be likely to be forced or seduced to illicit intercourse.
Kidnapping from lawful guardianship has been
defined under section 361 of the I.P.C. which provides, inter alia,
that if someone takes or entices any minor, who is under the age
of sixteen years if a male or under eighteen years of age if a
// 13 //
female, out of keeping of the lawful guardian of such minor
without the consent of such guardian, can be said to have
kidnapped the minor from lawful guardianship. Thus, one of the
vital ingredient that is required to be proved is the age of the
female victim to be under eighteen years of age. Similarly, so far
as the abduction is concerned, which has been defined under
section 362 of the I.P.C., there must be evidence that the
accused by force has compelled or by any deceitful means has
induced the victim to go from any place. If such kidnapping or
abduction as defined under the aforesaid sections 361 & 362
I.P.C. respectively are for the purposes which have been
mentioned under section 366 of the I.P.C. then only the
ingredients of the offence would be attracted.
Learned counsel for the appellant placed reliance on
the decision of the Hon'ble Supreme Court in case of S.
Varadarajan -Vrs.- State of Madras reported in A.I.R. 1965
Supreme Court 942 wherein it is held that taking or enticing
minor out of the lawful guardianship is an essential ingredient of
the offence of kidnapping. But when the girl who though a minor
had attained the age of discretion or on the verge of attaining
majority where the minor leaves her father's protection knowing
and having capacity to know the full import of what she is doing,
voluntarily joins the accused, the accused cannot be said to have
// 14 //
taken her away from the keeping of her lawful guardian.
Something more has to be shown in a case of this kind and that
is some kind of inducement held out by the accused person or an
active participation by him in the formation of the intention of
the minor to leave the house of the guardian. If the evidence to
establish one of those things is lacking, it would not be
legitimate to infer that the accused is guilty of taking the minor
out of the keeping of the lawful guardian merely because after
she has actually left her guardian's house or a house where her
guardian had kept her, joined the accused and the accused
helped her in her design not to return to her guardian's house by
taking her along with him from place to place. No doubt, the part
played by the accused could be regarded as facilitating the
fulfilment of the intention of the girl. But that part falls short of
an inducement of the minor to slip out of the keeping of her
lawful guardian and is, therefore, not tantamount to "taking".
Learned counsel further placed reliance in the case of
Lalta Prasad -Vrs.- State of Madhya Pradesh reported in
A.I.R. 1979 Supreme Court 1276 wherein the Hon'ble
Supreme Court has been pleased to hold that even though it is
assumed in favour of the prosecution that the victim was below
eighteen years of age but then two ingredients further must be
established; (i) that she was kidnapped or abducted from the
// 15 //
custody of her lawful guardian, and (ii) that she was kidnapped,
or abducted with the intention of compelling her to marry any
person against her will or in order that she may be forced or
seduced to illicit sexual intercourse.
Learned counsel further placed reliance in the case of
Shyam and another -Vrs.- State of Maharashtra reported
in 1995 Criminal Law Journal 3974 wherein the Hon'ble
Supreme Court has been pleased to hold that when the case of
the prosecution is that the accused took the victim by means of
a bicycle, it was expected of her then to jump down from the
bicycle, or put up a struggle and, in any case, raise an alarm to
protect herself. No such steps were taken by her. It seems she
was a willing party to go with the appellant on her own and in
that sense, there was no 'taking' out of the guardianship of her
mother and the charge under section 366 I.P.C. would fail.
In the case of Jinish Lal Sah -Vrs.- State of Bihar
reported in (2003) 1 Supreme Court cases 605, the Hon'ble
Supreme Court has been pleased to hold that the evidence on
record indicates that the victim was with the appellant from 30th
April to 10th May during which period she had travelled by train
and stayed with the appellant without there being any evidence
of her having protested or having made any effort to seek help
from others or even trying to run away. In such a situation, in
// 16 //
the absence of any other material to show to the contrary, it
would be difficult to accept the prosecution case that either there
was a forcible marriage or rape as contended by the prosecution
to find the appellant guilty under section 366 or section 376 of
the I.P.C.
Age of the victim:
Coming to the age of the of the victim, the learned
trial Court seems to have relied mainly on the evidence of
Headmistress of the Nehru Nodal U.P. School, Safa who has been
examined as P.W.15 and proved the school admission register in
which the date of birth of the victim has been mentioned to be
10.06.1994. It transpires from her evidence that the victim was
admitted in the said school on 12.07.1999 and transfer
certificate was issued in her favour on 28.03.2011. The school
admission register entry and the transfer certificate have been
marked as Ext.13 and Ext.10 respectively. However, in the
cross-examination of P.W.15, it is revealed that she had not
admitted the victim in the school and no document was produced
before the school at the time of admission of the victim to
establish the authenticity of her date of birth. At column no.10, it
was noted that "PITANKA LIKHITA MATE". The word 'LIKHITA'
was struck down and substituted by "KAHIBA". The substituted
word "KAHIBA" is made by another person. P.W.15 specifically
// 17 //
stated that the father of the victim had not produced any writing
in respect of the date of birth of the victim and the school
admission register also did not indicate as to when and by whom
the word "LIKHITA" was struck down and substituted by the
word "KAHIBA". The father of the victim has been examined as
P.W.3 and his evidence is also silent about the date of birth of
the victim. He only stated that the victim was aged about sixteen
years at the time of occurrence. However, he stated that except
the school leaving certificate of the victim, he had not handed
over anything to the police. The mother of the victim being
examined as P.W.2 is also silent about the date of birth of the
victim. However, she stated that the victim was aged about
sixteen years at the time of incident. Therefore, there is no oral
evidence adduced by the parents of the victim regarding the
date of birth of the victim nor there is any documentary evidence
like the birth certificate to substantiate the correct age of the
victim. Even though in the school admission register, the date of
birth of the victim has been mentioned as 12.07.1999 but since
there was no basis for mentioning such age in the school
admission register, the same is not acceptable. The doctor
(P.W.11), who examined the victim on 28.03.2011 at S.C.B.
Medical College and Hospital, Cuttack stated that from the
physical, dental and radiological examination, the age of the
// 18 //
victim was found to be more than sixteen years and less than
seventeen years. Though the doctor in her evidence stated about
the positions of the different bones but x-ray plates have not
been produced in Court nor those were attached to the report of
P.W.11 which has been marked as Ext.12. Also, the x-ray report
has not been proved nor the person who conducted the x-ray
has been examined. Therefore, from the evidence of the doctor
(P.W.11) which is an opinion evidence relating to the age of the
victim, it cannot be said with certainty that the prosecution has
successfully proved that the victim was under eighteen years of
age at the time of occurrence.
Analysis of the victim's evidence:
The victim (P.W.8) though stated in her examination-
in-chief that on the date of incident at about 7 p.m. to 8 p.m.
when she had been to fetch water from the village well, the
appellant forcibly kidnapped her by means of a bicycle towards
the house of his relative at village Nandua but in the cross-
examination, she stated that the appellant parked his cycle at
village lane at a distance of 200 meters to 300 meters away
from the village well where she had gone to fetch water. She
further stated that the appellant dragged her by hand towards
the place where he had parked the cycle by covering the house
of the nearby dwellers including her house. Had that been the
// 19 //
state of affairs, it would have drawn the attention of others.
Therefore, the evidence of the victim that the appellant dragged
her towards the place where he had parked his cycle at a
distance of 200 meters to 300 meters is very difficult to be
accepted. The victim further stated that she sat at the rear
(carrier) of the cycle and they passed 300 to 400 meters to
reach village Nandua. She further stated that she did not shout
for any help when the appellant was kidnapping her by means of
his cycle and she did not get down from the cycle.
The father of the victim being examined as P.W.3
has stated that she got the intimation from a co-villager that the
victim eloped with the appellant by means of a bicycle through
their village road to Chandanpur road and the said road
approached the National Highway-5 at Chhatia by covering
Chandanpur, Kanpur, Bisuali, Kusupada, Amejhari, Bairee,
Solara and Chhatia and the victim and the appellant went
through the above villages.
In view of the conduct of the victim in sitting on the
rear-carrier of bicycle of the appellant and not trying to escape
from his cycle and not trying to shout to draw the attention of
anyone either when she was dragged or when she was taken on
the bicycle while passing through village houses clearly indicate
that she was a consenting party. The victim further stated that
// 20 //
the uncle of the appellant, the appellant and she herself came to
Chandikhol Court by means of motorcycle and the Court was
crowded with advocates and they reached at the Court at about
11 a.m. to 12 noon but she did not disclose anything about the
incident to anybody at Chandikhol Court. She further stated that
from Chandikhol, they went to the house of the sister of the
appellant and they stayed there for two to four days and then
they went to the house of the appellant at village Safa from
where she was rescued by the police on the next day. The
conduct of the victim as narrated above indicates that not only
she was a consenting party but she voluntarily accompanied the
appellant from place to place and therefore, it cannot be said
that the appellant induced her in any manner to leave the lawful
guardianship. The evidence on record indicates that the victim
stayed with the appellant for seven months and during this
period, they visited number of places including the Court. When
the victim was examined by the doctor, she gave her marital
status to be married and having last sexual intercourse with her
husband one week before her examination and therefore, the
victim seems to have accepted the appellant as her husband and
allowed the appellant to have sexual intercourse with her. This
aspect finds corroboration from the medical report of P.W.11
who examined the victim. On genital examination of the victim,
// 21 //
she found wide gapping of the labia majora, her labia minora
was exposed and there were old tears over the hymen. All these
are suggestive of the fact that the victim had frequent sexual
intercourse with the appellant.
In her report, P.W.11 further stated that the vaginal
opening of the victim easily admitted two fingers. The medical
professionals while conducting medical examination on the
victims of rape and sexual assault cases should desist from two-
finger test in the private part of the victim which is also known
as virginity test as the test violates the right of such victims to
privacy, physical and mental integrity and dignity and hence, not
at all permissible under the law. It is no less than adding an
unforgettable insult to an unhealed injury. When a sexually
active woman or a woman habituated to sexual intercourse can
also be raped if the act of the accused comes within section 375
of I.P.C., this sort of test is certainly unscientific and
traumatizing.
While declaring the 'two-finger test', the Hon'ble
Supreme Court in the case of Lillu @ Rajesh and another
-Vrs.- State of Haryana reported in (2013) 14 Supreme
Court Cases 643 held as follows:
"14. Thus, in view of the above, undoubtedly,
the two-finger test and its interpretation
// 22 //
violates the right of rape survivors to privacy,
physical and mental integrity and dignity. Thus,
this test, even if the report is affirmative,
cannot ipso facto, give rise to a presumption of
consent."
Recently, the Hon'ble Supreme Court in the case of
State of Jharkhand -Vrs.- Shailendra Kumar Rai reported
in (2022) SCC OnLine SC 1494, while reiterating the dictum
laid down in the case of Lillu (supra), ruled that any person who
conducts 'two-fingers test' or 'per vaginum examination' in
contravention of the directions of the Hon'ble Court shall be
guilty of 'misconduct'.
No doubt the medical examination in the present
case was conducted by P.W.11 in the year 2011 which is two
years prior to the decision of the Hon'ble Supreme Court in the
case of Lillu (supra), however, this Court is constrained to
observe the above as it is not very infrequent to see such test
being conducted by medical professionals in a routine manner
while medically examining victims of rape and sexual assaults in
most of the cases which is derogatory to the invaluable dignity of
the victims.
// 23 //
Conclusion:
In view of the foregoing discussions, in absence of
any clinching evidence that the victim (P.W.8) was under the age
of eighteen years at the time of occurrence and since she seems
to have left her lawful guardianship on her own accord and
voluntarily joined the accused and she remained in the company
of the appellant without any protest for seven months and was
treating the appellant to be her husband and allowing him to
have sexual intercourse with her and since she seems to be a
consenting party, I am of the humble view that neither the
ingredients of the offence under section 366 of the I.P.C. nor
section 376 of the I.P.C. are attracted against the appellant.
Accordingly, the Jail Criminal Appeal is allowed. The
impugned judgment and order of conviction of the appellant
under sections 366/376 of the I.P.C. and the sentence passed
thereunder is hereby set aside and the appellant is acquitted of
all such charges.
The appellant, who is on bail by order of this Court
vide order dated 14.12.2015 passed in Misc. Case No.68 of
2015, is hereby discharged from liability of the bail bonds and
the surety bonds shall also stand cancelled.
// 24 //
Lower Court Records with a copy of this judgment be
sent down to the learned trial Court forthwith for information and
necessary action.
Before parting with the case, I would like to put on
record my appreciation to Mr. Sobhan Panigrahi, the learned
Amicus Curiae for rendering his valuable help and assistance
towards arriving at the decision above mentioned. The learned
Amicus Curiae shall be entitled to his professional fees which is
fixed at Rs.7,500/- (rupees seven thousand five hundred only).
This Court also appreciates the valuable help and assistance
provided by Mr. Arupananda Das, learned Additional Government
Advocate.
.................................
S.K. Sahoo, J.
Orissa High Court, Cuttack
The 23rd August 2023/ Sipun
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 11-Sep-2023 17:31:55
