Orissa High Court
Nabakishore Pradhan @ Nabakela vs State Of Orissa on 19 August, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.379 of 2005
(In the matter of an application under Section 374 of the Criminal
Procedure Code, 1973)
Nabakishore Pradhan @ Nabakela ....... Appellant
-Versus-
State of Orissa ....... Respondent
For the Appellant : Ms. Shatabdi Samantaray, Advocate
For the Respondent : Mr. Sarathi Jyoti Mohanty, ASC
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 29.07.2025 :: Date of Judgment: 19.08.2025
S.S. Mishra, J. The present Criminal Appeal, is filed by the appellant
under Section 374 of Cr. P.C., assailing the judgment and order dated
31.08.2005 passed by the learned Additional Sessions Judge, Fast Track
Court No.III, Bhubaneswar in S.T. Case No.42/52/344 of 2005/2004,
whereby the learned trial Court has convicted the accused-appellant for
the offence under Section 354/506 of the Indian Penal Code, 1860
(herein after "Code" for brevity) and sentenced him to undergo R.I. for a
period of two years under Section 354 of the Code and further a period
of one year under Section 506 of the Code, and it was ordered that the
sentences are to run consecutively.
2. The case of the prosecution, tersely put, is that on 16.01.2004, the
informant-victim lodged an F.I.R. alleging that on 11.01.2004, one Naba
Kela(accused-appellant in the present case) approached the informant at
her home saying that his wife has gone away being annoyed and she(the
informant) should convince her and bring her back. And they together
left for bringing back the present appellant's wife. On the way of Kaargil
Road, near the aerodrome wall the accused overpowered the informant-
victim and outraged her modesty and gave threatening to take away her
and her husband's life if the matter was disclosed to anyone. The
informant-victim came back home crying, later informing about the
same to her husband upon his return from fishing. Husband of the
informant brought this fact to the notice of two persons one namely
Binapani Mishra and other namely Baruni Didi and accompanied them
to the house of the accused-appellant to know about the matter from him.
Further, the informant becoming intolerable of the criticisms faced, took
poison and lost her consciousness and was rushed to the capital hospital.
On the next morning, she came back home with her husband without
informing anything to the Doctor. Again during the late night hours of
13.01.2004, the accused appellant-Naba Kela, came to her house and
threatened to take away the life of the informant and her husband if the
matter was disclosed. So, she kept quiet, not disclosing about the matter
to anyone. As she was admitted to the hospital taking poison, police
searched for her husband to know about the actual matter after which the
informant, lodged report stating true facts of the matter. On this report
the case was registered and following arrest of the accused he was
produced before the learned Court below and was forwarded to the
custody on 18.01.2004 and after further investigation and recording of
statement of the accused-appellant and the witnesses, a charge sheet was
filed under Section 376/506 of the Code, to which the accused took plea
of complete denial. So, he was put to trial under the aforementioned
provisions of Law.
3. To substantiate the case put against the accused-appellant as many
as eight witnesses were examined by the prosecution, out of which,
P.W.1 was the informant, P.W.3 is the husband of the informant, P.W.2
is the sister of P.W.3, P.Ws.4 and 5 are the two ladies to whom the
matter was informed and they also visited the house of the accused-
appellant for knowing about the matter. P.W. 6 was an independent
witness, P.W.7 was the Doctor who treated the victim upon her
consumption of poison and P.W.8 was the Investigating Officer.
4. The learned trial Court analysed the oral evidence and documents
on record and categorically gave the following findings:-
"Then coming to the alleged of rape it seen that there is no
direct allegation of rape in the report of P.W.1. As per the
wording of the report her modesty was completely outraged.
During evidence in the court P.W.1 has directly stated that
accused committed rape on her by making her naked and by
opening his pyant. Further she has stated that at the time of
commission of rape accused caught hold of her neck for
which she could not raise shout. Though P.W.1 has stated
that accused committed rape and there was discharge of
semen at the time of intercourse, there is no specific evidence
by her that there was penetration of the male organ of the
accused in the private part of P.W.1. Regarding the alleged
rape evidence of P.W.3 corroborates to the evidence of
P.W.1 and P.W.3 came to know regarding commission of
such rape by the accused on her from P.W.1. P.W. 1 has
deposed that her blouse was torn and there was biting mark
on her chest. P.W.3 has stated he has no knowledge if
wearing apparels of P.W.1 were torned. There is evidence in
the record regarding the place where rape was committed is
a stony place. But, there is no evidence on record that P.W.1
sustained any injury on her person due to rough surface.
P.W.1 has categorically stated that her glass bangles were
broken and fell on the spot which was shown by her to the
police. I.O. has specifically deposed that there was no mark
of violence at the spot and no broken glass bangles was there
in the spot and no such thing was seized by her except the
wearing apparels of the victim and of the accused. So far as
the semen stain is concerned P.W.1 has deposed she wiped
out semen in her saya and saree and did not wash the same
till those were seized by the police. This evidence of P.W.1
gets support from the report of the FSL of the seized wearing
apparels of both victim and accused. It has been marked
exhibit. P.W.1 has also specifically deposed colour of her
saree, saya and blouse. This evidence of victim gets support
from the seizure list where specific colour of saree, saya and
blouse has been mentioned. Though all the above mentioned
facts go in favour of the prosecution case, the doctor P.W.7
has deposed she examined P.W.1 and found there was no
sign of forcible intercourse. The doctor examined the victim
on 17.1.2004 whereas the alleged incident took place on
11.1.2004. Whatsoever may be the time of examination, as
per technical report of the doctor there was no sign of
forcible intercourse. Apart from the report of the doctor, it
has also been discussed earlier that as per existing evidence
of victim there is no direct and conclusive proof of sexual
intercourse and rape. But from the earlier discussion it is
evident that there was attempt to rape which fact has been
proved by oral evidence adduced by the witnesses and the
same is supported by documentary evidence regarding
existence of semen mark on the wearing apparel of both
victim and accused. So it is held that prosecution has been
able to prove its case beyond all reasonable doubt against
the accused persons u/s 511 I.P.C. instead of u/s 376 I.P.C.
Further prosecution has been able to prove its case against
the accused person u/s 506 I.P.C. So the accused is found
guilty of the offences u/s 511 I.P.C. and 506 I.P.C and is
convicted thereunder."
5. Aggrieved by the aforementioned judgment of conviction and
order of sentence passed by the learned Additional Sessions Judge, Fast
Track Court No.III, Bhubaneswar, the present Appeal has been preferred
by the appellant.
6. Heard Ms. Shatabdi Samantray, learned Counsel appearing for the
appellants and Mr. Sarathi Jyoti Mohanty, learned Additional Standing
Counsel for the State.
7. While analyzing the evidence on record, I find no reason to
disagree with the findings returned by the learned trial court as has been
reproduced above. Hence, I affirm the conviction recorded against the
appellant for the offences under Section 354/506 of the Code. However,
coming to the quantum of sentence, it appears that the learned trial Court
has only awarded a sentence of two years of R.I. for offence under
Section 354 of the Code and further one year for the offence under
Section 506 of the Code, against the statutory provision mandating the
Court to not only impose the sentence under Section 354 of the Code but
also the fine. Therefore, this is a case where while affirming the
conviction, the sentence awarded by the learned trial Court is liable to be
varied. At this stage, Ms. Shatabdi Samantray, learned counsel for the
appellant submitted that the appellant has already undergone
imprisonment of one year and nine months which has not been disputed
by Mr. Sarathi Jyoti Mohanty, learned ASC. Therefore, he may not be
sent back the custody to serve out the remaining sentence at the belated
stage. The incident relates back to the year 2004. At that point in time,
the appellant was in his early 30s. At present he must be in his early 50s.
Therefore, sending him to custody at this stage would definitely be harsh
on him and detrimental to the entire family. Too much have changed in
between in regard to his social status and he has already well integrated
into the society. Therefore, I am inclined to accede to the prayer made by
Ms. Samantraty, learned counsel for the appellant.
8. Accordingly, the sentence of two years R.I. for offence under
Section 354 of the Code and further one year for offence under Section
506 of the Code as awarded against the appellant is reduced down to that
of the custody he has already undergone. However, I impose a fine of
Rs.5,000/-(rupees five thousand only) for the offences U/s.354/506 of
the Code, in default of payment of fine, he shall undergo S.I. of one
month. The fine amount to be deposited by the appellant shall be
disbursed to the victim in accordance with the provisions of Section 357
Cr.P.C.
9. Hence, the CRLA is partly allowed.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack.
Dated the 19th of August 2025/Swarna
Designation: Senior Stenographer
Location: High Court of Orissa
