Orissa High Court
Dambarudhar Sarabu vs State Of Orissa on 21 August, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.562 of 2006
(In the matter of an application under Section 374 of the Criminal
Procedure Code, 1973)
Dambarudhar Sarabu ....... Appellant
-Versus-
State of Orissa ....... Respondent
For the Appellant : Mr. D. K. Mishra, Advocate
For the Respondent : Mr. Raj Bhusan Dash, ASC
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 21.08.2025 :: Date of Judgment: 21.08.2025
S.S. Mishra, J. The present Criminal Appeal, filed by the appellant-
Dambarudhar Sarabu under Sections 374 of the Cr.P.C., is directed
against the judgment and order dated 19.12.2006 passed by the learned
Additional Sessions Judge-cum-Special Judge, Nabarangpur in C.T.
Case No.28 of 2004, whereby the present appellant has been convicted
for the offence under Sections 352/451 of the I.P.C. and on that count, he
was sentenced to undergo R.I. for one month for the offence under
Section 352 of I.P.C. and R.I. for three months for the offence under
Section 451 of I.P.C.
2. Heard Mr. D. K. Mishra, learned counsel for the appellant and Mr.
Raj Bhusan Dash, learned Additional Standing Counsel for the State.
3. The prosecution case in terse and brief is that on 07.12.2003 at
about 7. 00 P.M., the husband and the son of the informant had gone out
of the village and the informant was alone. When she was cooking food
inside the house, at that time, the accused-appellant entered into the
house and dragging her to a mango-tope, made her lie down on the
ground and committed sexual intercourse against her will. It is alleged
that when the husband and the son of the informant reached, the
appellant fled away from the spot. On the following day, there was a
meeting held in the village for settling the dispute, but nothing could be
settled. Hence, the F.I.R. was registered being Tentulikhunti P.S. Case
No.70 dated 08.12.2003.
4. On the basis of the aforesaid allegations, the police investigated
the case and on 17.01.2004, filed the charge-sheet for the offence
punishable under Sections 457/376 of I.P.C. read with Section 3(1)(xii)
of SC/ST (PoA) Act against the appellant. From the investigation, it was
revealed that the victim/informant belongs to Schedule Tribe and the
accused-appellant belongs to the general caste. On the stance of denial
and claim of trial, the appellant was put to trial after framing of charges
of the offences, as mentioned above.
5. The prosecution in order to prove its case examined as many as
thirteen witnesses. Out of whom, P.W.1 is the informant and the victim.
P.W.2 is the husband of the informant and P.W.3 is the son of P.W.1.
P.Ws.4, 5 and 10 are the Gram Rakhi, who attended the investigation of
the police. P.Ws.6, 7 and 13 are the independent villagers. P.Ws.8 and 9
are the Revenue Personnel, who enquired about the caste of the parties.
P.W.12 is the doctor, who examined the victim and P.W.11 is the I.O. of
the case.
6. The learned trial Court after analyzing the evidence of the
informant/victim (P.W.1) and other witnesses have arrived at a
conclusion that the accused person is not guilty for the offences under
457/376 of I.P.C. read with Section 3(1)(xii) of the SC & ST (PoA) Act
rather he is held guilty of the offence under Section 352/451 of I.P.C
and on that count, sentence has been awarded. Relevant part of the said
judgment is reproduced hereunder:-
"8. P.W.1 has stated that she had no injury. However
the doctor P.W.12 has stated that he found two
injuries on the person of the victim. It has been
alleged by the prosecution that P.W.1 was inflicted
injuries due to the dragging. The injuries were simple
and P.W.1 has stated that she had no injury. However
the fact remains that there was use of criminal force
by the accused. The accused used force against P.W.1
without her consent. The same was likely to cause
injuries and also the act of the accused was likely to
cause annoyance and fear. The evidence of P.W.1
clearly indicates that it was criminal force. The
accused used such criminal force without any
provocation. So he is liable under section 352 I.P.C.
9. The accused entered into the house of P.W.1. He
was drunk. He had malafide intention in going to the
house of P.W.1. Her husband and son were absent.
P.W.1 was alone. In a drunken condition the accused
dragged P.W.1. He has used criminal force against
her. So entering into the house of P.W.1 is an act of
criminal trespass into a building used as human
dwelling and accordingly the same becomes act of
house trespass. The accused never did any act of
house breaking. The trespass by the accused was not
in surreptitious manner. The accused did not do
anything to conceal his presence. There was
absolutely no act of lurking house trespass and the
charge u/sec. 457 I.P.C. cannot stand. But the
accused committed house trespass for using criminal
force against P.W.1. He went to the house of P.W.1 to
commit an offence punishable with imprisonment as
provided under section 352 I.P.C. Accordingly he is
guilty under section 451 I.P.C. for the act of house
trespass.
10. P.W. 1 has stated that she belongs to Schedule
Tribe and that the accused is goldsmith. She has not
stated if the accused does not belong to schedule
caste, or Schedule Tribe. No other witness has stated
about the matter. P.W.8 the Tahasildar has stated to
have forwarded the report of the R.I. The R.I. has
been examined as P.W.9. He has stated that the victim
belongs to schedule caste though the victim herself
has stated that she belongs to schedule tribe. The
report of P.W.9 has been marked as Ext.4. In this
document the R.I. has indicated that the victim
belongs to schedule tribe. So, there is contradiction in
the report and the statement of P.W.9. There is lack of
satisfactory evidence regarding the caste of the
parties. It is further found that P.W.11 conducted
almost the entire investigation of the case. The
offence allegedly committed is under section 3(1)(xii)
of the S.C. & S.T. (P.A.) Act and the matter should
have been investigated by a police officer not below
the rank of D.S.P. There is no material regarding the
investigation by a police officer of the rank of the
D.S.P. So the case is bad. There is also no material to
ascertain whether the accused took the advantage of
the position of his caste and if the victim could not
have been exploited, if she was not a member of the
schedule Tribe. There is also no material to believe
the allegation of sexual exploitation. P.W.1 the victim
has alleged to have been only dragged. In the present
case the prosecution has not been able to adduce
satisfactory evidence to show that a women belonging
to schedule tribe was exploited sexually. So the
charge under section 3(1)(xii) of the S.C.& S.T(PA)
Act is bound to fail.
11. In the result, the prosecution has been able to
prove its case in part. The accused is found not guilty
of the charge u/sec. 457/376 I.P.C. and u/sec.3(1)
(xii) of the S.C.& S.T. (PA) Act. But he is found guilty
u/sec.352/451 I.P.C. and is convicted thereunder."
7. Being aggrieved by the judgment of conviction and order of
sentence passed by the learned Additional Sessions Judge-cum-Special
Judge, Nabarangpur, the present appeal has been preferred by the
appellants.
8. Mr. Mishra, learned counsel for the appellant, submitted that the
appellant was charged under Sections 457/376 of the I.P.C. read with
Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act. However, vide judgment and order dated
19.12.2006, the learned trial Court acquitted the appellant of the offence
under Section 3(1)(xii) of the SC/ST (PoA) Act basing on the provision
that the investigation was conducted by P.W.11, an officer below the
rank of Deputy Superintendent of Police, in contravention of Rule 7 of
the SC/ST (PoA) Rules, 1995. The learned trial Court, however, found
the appellant guilty for the offence under Section 451/352 of I.P.C. and
on that count sentence has been awarded.
9. Mr. Mishra, learned counsel further submitted that the appellant
was arrested on 09.12.2003 and forwarded to Court on 10.12.2003. He
was released from the custody on 02.07.2004. Therefore, the appellant
remained in custody for about six months twenty-two days.
10. This Court vide order dated 17.07.2025, sought for a report from
the I.I.C. of the concerned P.S. regarding the wellbeing and whereabouts
of the appellant. Pursuant thereto, the I.I.C., Tentulikhunti P.S. has filed
a report dated 30.07.2025 inter alia stating that although the appellant is
surviving but his heath condition is terrible. He is undergoing treatment
of paralysis and is also bed ridden since last five to six years. Some
photographs are also enclosed, which indicates that the appellant is not
in good health condition.
11. Regard being had to the period of custody the appellant has
already undergone and his health condition, Mr. Mishra, learned counsel
for the appellant submits that he would not press this appeal in so far as
conviction is concerned and confined his argument to the quantum of
sentence. He further submitted that the records reveal the appellant has
already undergone the entire sentence awarded to him. Therefore, on
sentence also nothing needs to be heard.
12. In view of the submission made by the learned counsel for the
appellant, nothing survives in the appeal. Accordingly, while affirming
the judgment of conviction and order of sentence passed by the learned
Additional Sessions Judge-cum-Special Judge, Nabarangpur vide the
impugned judgment dated 19.12.2006, the appeal stands dismissed.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack.
Dated the 21st August, 2025/ Swarna
Designation: Senior Stenographer
Location: High Court of Orissa
