Orissa High Court

Ramesh Chandra Mahato vs State Of Orissa on 18 July, 2025

         THE HIGH COURT OF ORISSA AT CUTTACK

                         CRA No.01 of 1998

(In the matter of an application under Section 374(2) read with Section
382 of the Criminal Procedure Code, 1973)


Ramesh Chandra Mahato                  .......               Appellant

                                 -Versus-

State of Orissa                       .......                 Respondent

For the Appellant : Ms. Kirtika Banarjee, Advocate on behalf of Mr. S. K. Dash, Advocate For the Respondent : Mr. Ashok Kumar Apat, AGA

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 10.07.2025 :: Date of Judgment: 18.07.2025

S.S. Mishra, J. The present Criminal Appeal, filed by the appellant

under Sections 374(2) read with Section 382 of the Cr. P.C., is directed

against the judgment of conviction and order of sentence dated

12.12.1997 passed by the learned Additional C.J.M.-cum-Assistant

Sessions Judge, Rourkela in S.T. Case No.30/17 of 1997, whereby the learned trial Court has convicted the appellant for the offences under

Section 376/307 of I.P.C. and sentenced him to undergo R.I. for seven

years for the offence under Section 376 of I.P.C. and pay a fine of

Rs.20,000/-, in default, to undergo further R.I. for two years. The

appellant has been further sentenced to undergo R.I. for five years and to

pay a fine of Rs.10,000/-, in default, to undergo R.I. for one year for the

offence under Section 307 of I.P.C.

2. Heard Ms. Kirtika Banarjee, learned counsel for the appellant and

Mr. Ashok Kumar Apat, learned Additional Government Advocate for

the State.

3. The prosecution's story in terse and brief is that:-

(a) On 24.09.1996 at afternoon, the victim (P.W.9) being daughter of

(P.W.6) Rajendra Mahato, went to take bath in a well near a paddy field.

The accused-appellant came to her and gagged her mouth, lifted her

bodily to the nearby paddy field. Then, he committed rape on her.

(b) It is further alleged that the accused-appellant left the victim inside

the well and went away. The victim somehow escaped and came home

and disclosed the incident to her father and brother, who in turn called

for a village meeting on the same day. The incident was confronted with

the appellant, who denied the same. Therefore, Birsa P.S. Case No.58

dated 28.09.1996 has been registered.

and charges were framed for the offence under Section 376/307 of the

I.P.C. and the appellant was put to trial on the denial of charges.

4. The prosecution in order to bring home charges, examined twelve

witnesses to establish its case. However, the defence took a stance of

denial. P.Ws.1 & 2 were the villagers, those who had participated in the

meeting called by the father of the victim. P.W.3 is the uncle of the

victim girl. P.W.4 is the wife of P.W.3, who is an aunt of the victim.

P.W.5 claims to be an eyewitness to the occurrence. P.W.6 is the father

of the victim girl, whereas P.W.7 was the seizure witness. P.Ws.8 and 11

were the I.O. of the case. P.W.9 is the victim girl whereas P.W.12 was

the doctor, who examined the victim.

5. After taking into consideration the evidence of all the witnesses,

those who have deposed in unison confirming the incident as narrated by

the victim (P.W.9), the learned trial Court found the appellant guilty for

the offence punishable under Sections 376/307 of I.P.C. and imposed

penalty as mentioned above.

6. Ms. Banarjee, learned counsel for the appellant, submitted that this

is a case of clear acquittal as the testimony of the witnesses if carefully

scrutinized, it would reveal that inconsistency in testimony are apparent.

Therefore, the trustworthiness of the evidence of the witnesses is clearly

doubtful particularly the testimony of P.W.9, the victim, inspires no

confidence because the incident alleged to have happened in the

afternoon and she herself has deposed that there were other persons

present near the well where she was taking bath. Therefore, the

testimony cannot be relied upon. She has very empathically relied upon

the evidence of the doctor (P.W.12). The doctor has opined that there is

no sign of recent sexual intercourse present and the doctor has explained

what he meant by recent sexual intercourse, inter alia stating as under:-

"2. Recent sexual intercourse I mean sexual intercourse within three to four days in this case. There was fresh tear. When the inflammation for lapse of time gradually subsides the initial condition of inflammation gradually becomes mild. I have not mentioned redness in my report. The inflammation in such cases disappears after four

days. If it is true the colour of injury is guiding factor to determine the age of the victim. Nail mark in the body can continue for seven days. I examined the at 5.P.M. on 29.09.96. I examine the victim in police constable identifying the victim. Few minutes the victim was produced before me for my examination."

(uncleared)

7. To create a doubt to the evidence of P.W.9 vis-à-vis the evidence

of P.W.12, Ms. Banarjee has connectedly produced various literature

regarding the medico-legal examination of the victim of sexual violence.

By taking me to the literature, learned counsel for the appellant

submitted that in this case the procedure and protocol to be followed for

examination of the victim is given a clear go by. Therefore, the

testimony of P.W.12 is not worth reliance. She further submitted that as

per the version of the victim, Ratnakar Mahato wrote a report addressed

to Jareikela Police Officer Ext.2 and subsequently another report was

written by her uncle Khyamanidhi Mahato. Both were written as per the

version of the victim. As per her version, the Jareikela Police outpost

instructed both the appellant and victim to marry and since the attempt

for the registration of marriage failed, the second report was lodged at

Birsa Police Station vide Ext.3. Thus, the report lodged at Birsa Police

Station would not have been regarded as the First Information Report as

prior to that report Ext.2 was already in existence and she submitted that

the subsequent report (Ext.3) on the basis of which the investigation had

proceeded hit by Section 162 read with Section 154 of Cr.P.C.

8. Ms. Banarjee, learned counsel for the appellant, has relied upon

the judgment of the Hon'ble Supreme Court in the case of Surender

Kaushik and Ors. vrs. State of Uttar Pradesh and Ors. reported in

(2013) 5 SCC 148 and submitted that on the same score, there cannot be

two F.I.Rs. against the same person in respect of the same incident. She

empathically submitted that Ext.3 which came to be registered

subsequently after the alleged refusal of the appellant to marry the victim

is not to be relied upon, however, in the present case, the entire

investigation has been proceeded on the basis of the said report i.e.

Ext.3. She has submitted that the delay in registration of the F.I.R. and

the delay in examination of the victim by the doctor are fatal to the

prosecution.

9. I have taken into consideration the evidence on record and the

case law cited by Ms. Banarjee, learned counsel for the appellant as well

as the literatures produced before the Court, I have ventured into the

evidence on record. In light of the aforementioned, I have proceeded to

analyse the appreciation of evidence that has been done by the learned

trial Court. The learned trial Court in paragraph-13 of the judgment has

dealt with the argument of the defence regarding the delay in registration

of F.I.R. and recorded as under:-

"13. It is true there was delay. But delay of four days has been clear and cogently explained by the prosecution witnesses that the Officer-in-charge of Jareikela Police- Out Post on the first day of the report wanted the father, uncle and victim to come on the next day. When they went on the next day of the incident, he suggested to get the girl married with the accused. Accordingly, they went to court for registration of marriage, but returned back for want of certificate. When certificate was arranged, accused did not turn up. Again they came to police out post at Jareikela, but the Police officer did not take any action. Thereafter they came to Bisra Police Station. This explanation appears to be enough explaining the delay. In this explanation there could be no doubt. Because had the prosecution otherwise intended, they could have assigned other cause and reason to explain the delay like villagers detained them to settle the dispute in the village out of Court for which report was not given in the police station in time. That would have been very easy for the

father and uncle of the victim to say. But, indeed, they appears to be very bold and straight forward in disclosing the act of cause of delay, why they came to Bisra Police Station late. More over if the rustic villagers had been actually shrewd and skillful and otherwise crocked, they would have cooked up an explanation like that easily. Since they were actually, innocent and were unable to invent. Such imaginary explanation, they narrated the real incident leading to delay in lodging the report in Bisra Police Station."

As regards the delay in the medical examination of the victim

(P.W.9) also, the learned trial Court has given a finding as under:-

"As regards delay in medical examination, the victim clearly deposed in her evidence Para-11 that the police officer took her to the doctor on 29.9.96. It is true requisition was written on 28.9.96, but the police officer took the victim to the doctor on 29.8.96. For that, the police officer is responsible not the victim. Hence, this delay in medical examination cannot twist the truth in as much as the evidence of the doctor P.W.12 and her report Ext.14 go to show that on examination of the victim girl on 29.9.1996, P.W.12 found signs of sexual intercourse present. The hymen was torn. The torn margins showed mild inflammation. Three nail marks were seen on her back side. From this, signs and symptoms, it is clear that the victim was subjected to sexual violence. In cross examination, it was also elicited that she was subjected to sexual intercourse before three to four days. It clearly coincides with the date of incident. Hence, the evidence of P.W.12 and her report Ext.14 provides strong corroboration to the testimony of the victim. The testimony of the victim regarding the incident being

corroborated by the evidence of doctor and his report and her immediate disclosure of the dirty incident before her aunt and well wishers and in the place of meeting in the presence of the accused further corroborates her evidence eliminating chance of embellishment, torturing or concoction."

10. The argument advanced by Ms. Banarjee, learned counsel for the

appellant to create a doubt on the prosecution version on the basis of

delay in registration of F.I.R. and delay in examination of the victim by

the doctor is well explained and appreciated by the learned trial Court

and I am completely in agreement with such view.

11. Reverting to the evidence on record of the present case, it is very

clear that P.W.9, the victim in her testimony has stated as under:-

"I know the accused. The incident had taken place on 24.9.96 on a Tuesday at 12 noon. On that day I had been to take bath in the well of a field. In the well, Gulanchi Mahato and Maheswar Mahato were taking bath. Ramesh Mahanto (accused) was also taking bath. Gulanchi Mahanto and Maheswar Mahanto after taking bath, went back to their house. I was taking bath putting on my skirt keeping the semiji and other garments on the platform of the well. Accused Ramesh gagged my mouth by means of semij and bodily lifted me to the nearby field. Accused committed rape on me. Thereafter, he put me inside the bathing well. The people take bath inside the well getting down the well. I came back to

the house, informed the incident of rape to my aunt. Thereafter I returned back to my house. I also narrated the incident before my father and brother. On the same day at about 7 P.M. a meeting was convened by my father regarding the incident......"

12. The said witness (P.W.9) has sustained very extensive cross-

examination. However, nothing could be elucidated from her testimony

to shatter her version in so far as the incident is concerned. Her version is

directly supported by the independent witnesses namely P.Ws.1, 2 and 3.

All the witnesses in unison have stated that on 24.09.1996 evening a

meeting was called by Rajendra Mahato, the father of the victim relating

to the incident of rape committed by the accused-appellant on his

daughter. They attended the meeting. The daughter of Rajendra Mahato

disclosed before all present in the meeting that on that day at about 12

noon time when she had gone to take bath near the village well, the

accused bodily lifted her to a nearby paddy field and sexually assaulted

her. The accused was questioned, who denied the allegation. These

witnesses were cross-examined but they are consistent in their version.

P.W.4 in her statement has stated that "on 24.09.1996 on Tuesday, my

niece (victim's name) came crying and narrated before me that when she

had been to take bath in the well, accused Ramesh Mahato sexually

assaulted her in the nearby field. She was put inside the well. After

returning to my husband to the house, I informed him regarding the

incident." This witness is the niece of the victim. The testimony of this

witness reveals that immediately after the incident, the victim narrated in

minute detail about the incident and in quick succession a meeting was

called for on the same day in the evening 7 O' clock. P.W.6, who is the

father of the victim, has completed the story put forth by the prosecution

by detailing the incident and as to how the meeting was convened to

settle the dispute and when the dispute was not settled, he was forced to

13. On right appreciating the evidence of the afore-named witnesses,

no doubt is left in the mind that the incident indeed had taken place on

24.09.1996 in the afternoon where the victim P.W.9 had been ravished

by the appellant. Therefore, the conviction recorded by the learned trial

Court against the appellant in so far as the offence under Section 376 of

I.P.C. is concerned, cannot be questioned.

14. Now coming to the charge under Section 307 of I.P.C., it is

evident from the evidence of P.W.12 that there is no bodily injury caused

to the victim. P.W.12 in his testimony has deposed as under:-

"(i) Signs of recent sexual intercourse were present.

(ii) The hymen was torn and torn margins showed mild inflammation.

(iii) three nail marks were seen on her back, about 4"

above the scarial end.

(iv) No other signs of external injury was seen.

(v) No foreign bodies like hair, semen etc were found on her private parts.

(vi) Vaginal swab, saliva were collected and preserved.

(vii) No external evidence of any vaneral diseases.

              (viii) The patient was referred to District
              Headquarters         Hospital,      Sundargarh      for
              determination of exact age.

From the deposition of P.W.12 in regard to the assault part is

concerned, it is clear that the victim girl did not sustain any injury. The

evidence of P.W.9 that after the appellant committed rape on her, he

brought her back and left her inside the well is not corroborating with

any evidence. Except for the isolated testimony of P.W.9 to the effect

that after the incident happened, the appellant has put her well, no other

evidence has come on record. At the same time, in that regard the

testimony of P.W.9 is very relevant to be emphasized. She stated that:-

"Accused Ramesh gagged my mouth by means of semij and bodily lifted me to the nearby field. Accused committed rape on me. Thereafter, he put me inside the bath well. The people take bath inside the well getting down the well. I came back to the house and informed the incident of rape to my aunt."

15. In the cross-examination, P.W.9 stated that she had not sustained

any injury during the incident. She has also stated that the depth of the

well was about 20' feet. She was inside the well, as a result of which, she

did not sustain any injury. The prosecution has not attempted to examine

any witnesses those who were present in the well as per the version of

P.W.9. Except for the isolated evidence, no other evidence has been

brought on record in that regard. In the light of the aforementioned

evidence on record, the learned trial court has recorded as under:-

"Next comes to the charge U/s. 307 IPC. The victim stated that accused put her inside the well after committing rape. The intention of the accused is to be inferred from his action. If he had intended to rape, after committing rape, he could have left the spot, leaving the victim at the spot. Instead of taking her to the well and putting her inside it. The action of the accused announces his intention of causing murder of

the victim by throwing her into the wall. Hence, it is held that it is clear attempt of murder of the victim by the accused. Thus it proved the charge U/s. 307 IPC against the accused"

16. The finding recorded by the learned trial Court in so far as the

charge under Section 307 of I.P.C. is concerned, is bereft of record and is

the culmination of inappropriate appreciation of evidence. Therefore, I

am completely disagree with the findings recorded by the learned trial

Court. Hence, in so far as the charge of the offence under Section 307 of

I.P.C. is concerned, the appellant is entitled to be acquitted. Accordingly,

the appellant is acquitted of the charge under Section 307 of I.P.C.

17. Ms. Banarjee, learned counsel for the appellant submits that the

appellant has in fact served out the entire sentence. Mr. Apat, learned

Additional Government Advocate for the State, has also not disputed the

said fact. Since the sentence has already been undergone by the

appellant, no further custody is required to be undergone by the appellant