Jagannath Nayak vs State Of Orissa
2025 Latest Caselaw 11351 Ori

Orissa High Court

Jagannath Nayak vs State Of Orissa on 16 December, 2025

         THE HIGH COURT OF ORISSA AT CUTTACK

                          CRLA No.359 of 2007

(In the matter of an application under Section 374 of the Criminal
Procedure Code, 1973)

Jagannath Nayak                       .......               Appellant

                                 -Versus-

State of Orissa                       .......             Respondent

For the Appellant : Mr. Soubhagya Kumar Dash, Advocate For the Respondent : Mrs. Siva Mohanty, ASC

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 09.12.2025 :: Date of Judgment: 16.12.2025

S.S. Mishra, J. The present Criminal Appeal is directed against the

judgment and order dated 10.07.2007 passed by the learned Special Judge, Keonjhar in Special Case No.1 of 2004, whereby the appellant

was acquitted of the charges under Sections 294 and 506 of the Indian

Penal Code and Section 3(1)(xi) of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, but was convicted under Sections

354 and 448 of the Indian Penal Code. The appellant was sentenced to

undergo rigorous imprisonment for one year for the offence under

Section 354 IPC and rigorous imprisonment for two months for the

offence under Section 448 IPC, with both sentences to run concurrently.

2. Heard Mr. Soubhagya Kumar Dash, learned Counsel for the

appellant and Mrs. Siva Mohanty, learned ASC for the State.

3. The prosecution case in brief is that on 23.12.2002, the prosecutrix

(P.W.1) was allegedly alone in her house when the appellant entered,

caught hold of her from behind, squeezed her breast, threw her on the

ground and attempted to commit rape by removing her clothes. The

appellant allegedly threatened her with dire consequences and promised

to pay money. It is further claimed that P.W.1 raised hullah and her

daughter (P.W.2), along with other villagers (P.Ws.4, 5, 6 and 7), arrived

at the spot, at which point the appellant fled after pushing her down. The

FIR was lodged on 15.01.2003, i.e., nearly twenty-two days after the

alleged incident.

4. During the investigation, the police recorded statements of

witnesses and submitted charge-sheet for alleged commission of

offences under Sections 354, 448, 294, 506 IPC read with Section

3(1)(xi) of the SC/ST (P.A.) Act. Notably, although the alleged offence

under Section 3(1)(xi) of the SC/ST Act was invoked, the investigation

was conducted by an officer below the rank of Deputy Superintendent of

Police.

5. The prosecution examined as many as 12 witnesses, out of whom

P.W.1 was the prosecutrix herself, P.W.2 was the daughter, P.W.3 was

the husband, and P.W.10 was the uncle-in-law of the prosecutrix.

P.Ws.4,5 and 6 were cited as witnesses, who had come to the spot on

hearing the hullah of P.W.1. P.W.7 was the brother-in-law of P.W.1.

P.W.8 was the Sarpanch of the Gram Panchayat, whereas P.W.9 was the

Peon in the Panchayat Office. P.Ws.11 and 12 are the witnesses to

seizure of the caste certificate. On the other hand, the defence examined

one witness, who was D.W.1.

6. The learned trial Court, while disbelieving the prosecution case

with respect to the charges under Sections 294 and 506 IPC and Section

3(1)(xi) of the SC/ST (P.A.) Act, proceeded to convict the appellant for

the offences under Sections 354 and 448 IPC while acquitting the

appellant of other charges. The relevant portion of the aforesaid

judgment is extracted herein below for ready reference:-

"16. Coming to the evidence adduced by the accused D.W.1 deposed that Rebati and her husband were selling firework. So, the villagers complained against them and no occurrence of outraging the modesty of Rebati took place. This evidence of D.W.1 does not indicate that at any time the accused made any complaint against the victim. So, this negative evidence of D.W.1 is of no use to defence as D.W.1 has deposed nothing about the incident.

17. From the discussions made above, I hold that the prosecution failed to prove its case against the accused u/s.294/506, I.P.C. and 3(1)(xi), S.C and S.T. (P.A) Act. Therefore, the accused is found not guilty u/s. 294/506, I.P.C and 3(1)(xi), S.C and S. T (P.A) Act and is acquitted therefrom. But prosecution proved its case against the accused u/s.448/354 I.P.C. and the accused is convicted thereunder."

7. Mr. Dash, the learned counsel for the appellant, contended that the

learned trial Court committed grave error in convicting the appellant

despite the prosecution evidence suffering from irreconcilable

contradictions and material omissions. It was argued that P.W.1 and

P.W.2 gave materially inconsistent versions regarding the presence of

other witnesses at the scene. P.Ws.4, 5, 6 and 7, who were projected as

eyewitnesses to the aftermath, have categorically denied having any

knowledge of the occurrence. Yet, the prosecution chose not to declare

any of them hostile, thereby accepting their depositions as part of the

prosecution case.

8. He further submitted that the FIR was lodged after an unexplained

delay of twenty-two days, indicating an afterthought or retaliatory

motive, particularly because the appellant had earlier lodged ICC Case

No.142 of 2002 against the prosecutrix and her husband, which resulted

in their conviction under Section 323/34 IPC.

9. Mr. Dash also submitted that the absence of the Investigating

Officer in the witness box has caused serious prejudice to the defence, as

contradictions under Section 161 Cr.PC could not be confronted, and the

manner of conducting the investigation could not be scrutinized. The

seizure witnesses (P.Ws.11 and 12) also did not support the prosecution

except to state that they witnessed seizure of the caste certificate of

P.W.1, which is wholly irrelevant to the substantive charges.

10. I have carefully considered the submissions advanced by the

learned counsel for the appellant and the learned counsel for the State

and have gone through the records of the case, including the depositions

of the witnesses and the documents produced.

11. This Court has meticulously examined the evidence on record and

finds that the testimony of P.W.1, the prosecutrix, is contradicted on

material particulars by P.W.2, her daughter. While P.W.1 deposed that

P.W.2, along with other villagers, arrived at the spot on hearing her cries,

P.W.2 asserted that no one else was present near the house at the relevant

time. This contradiction strikes at the root of the prosecution's version.

The testimonies of P.W.1 and P.W.2 in that regard are relevant, which

are reproduced herein for ready reference. P.W.1 stated thus:-

"The incident occurred at the kitchen. Bipina and Bisu are my co-villagers. Bisu and Bipina came by hearing my hulla. By that time the accused ran away."

On the contrary, P.W.2 has deposed as under:-

"I was outside the house when I heard the hulla. No body was present with me. The road leading to river is near our house. I was playing near the court-yard of our house. No body was present near the house when I heard hulla. The accused ran away through the front door towards the river. No other person came."

These are not merely trifling variations; they go to the core of

the prosecution's account about the presence of witnesses and the

appellant's alleged flight from the scene. When primary factual

components of the prosecution story, i.e., who was present, who came to

the spot, and whether there was an immediate public reaction, are

contradicted or negatived by witnesses whom the prosecution itself

called, the prosecution's case on the crucial facts is seriously impaired.

In such circumstances, the prosecution cannot be said to have established

the occurrence of the incident in the manner it is alleged.

12. Further, P.Ws.4, 5, 6 and 7, who were cited by the prosecution as

independent witnesses to have rushed to the house, categorically stated

that they knew nothing about the incident. The prosecution, remarkably,

did not treat them as hostile witnesses, thereby accepting their testimony

as binding. Their testimony, therefore, completely negates the

prosecution case about any such crowd gathering or the appellant fleeing

from the spot.

13. P.W.8, the Sarpanch, admitted in cross-examination that he did

not remember the nature of the complaint made by the prosecutrix,

making his testimony wholly irrelevant. Relevant part of his testimony

reads as under:-

"I do not remember the nature of the complaint made. I do not remember the date. I was not examined by the I.O."

P.W.9, a Peon, merely stated that he attempted to serve a notice on the

appellant but failed; he did not know the contents of the notice. Such

evidence does not advance the prosecution case. The seizure witnesses

(P.Ws.11 and 12) were examined only to prove the seizure of the caste

certificate of P.W.1. Their testimony does not advance the question

whether the alleged physical assault and attempt to rape occurred. In the

absence of any connection between the seizure and the alleged offence,

the seizure evidence is peripheral and cannot supply the substantive

proof required to sustain conviction under Sections 354 or 448 IPC.

14. The non-examination of the Investigating Officer is a fatal defect

in the prosecution case. In the absence of the I.O., the defence was

denied an opportunity to elicit contradictions in the statements recorded

during the investigation, challenge the manner and fairness of the

investigation, and establish that certain material omissions were

suppressed. There is prejudice caused to the defence due to non-

examination of the I.O. of the case, as defence has been deprived of

confronting the witnesses.

15. The delay of twenty-two days in lodging the FIR remains

unexplained. Given the prior conviction of P.W.1 and her husband in the

appellant's earlier complaint case, the possibility of false implication as a

counterblast cannot be ruled out. Courts have consistently held that

unexplained delay in lodging the FIR casts serious doubt on the veracity

of the prosecution case. In the background of the present case, delay in

registration of the F.I.R. became very fatal to the prosecution.

16. The totality of evidence shows that there is no consistent, reliable,

or cogent material to support the charges under Sections 354 or 448 IPC.

The prosecution case suffers from inherent improbabilities,

uncorroborated assertions, and complete absence of independent support.

The evidence falls short of the standard of proof beyond a reasonable

doubt.

17. For the reasons stated above, the conviction and sentence recorded

by the learned Special Judge, Keonjhar, in Special Case No.1 of 2004 are

unsustainable. The appellant is acquitted of all the charges. The bail

bonds are discharged.

18. Accordingly, the Criminal Appeal is allowed.

(S.S. Mishra) Judge

The High Court of Orissa, Cuttack.

Dated the 16th of December, 2025/Ashok

Signed by: ASHOK KUMAR JAGADEB MOHAPATRA

Location: High Court of Orissa