Orissa High Court
Mina Rao Nag vs State Of Orissa ...... Opp. Party on 30 May, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No. 206 of 2006
An application under Section 401 of the Code of Criminal Procedure
challenging the judgment and order dated 27.01.1999 of learned Assistant
Sessions Judge, Gunupur in Sessions Case No.5 of 1997 and the
judgment and order dated 01.07.2004 of learned Adhoc Addl. Sessions
Judge, Gunupur in Criminal Appeal No.176 of 2002.
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Mina Rao Nag ...... Petitioner
-versus-
State of Orissa ...... Opp. Party
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For Petitioner : Mr. Nalinikanta Dash, Adv.
For Opp. Party : Ms. Samapika. Mishra, A.S.C.
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CORAM:
HONOURABLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
30.05.2025
Savitri Ratho, J This revision has been filed challenging the judgment
and order dated 01.07.2004 passed in Criminal Appeal No.176 of
2002 by the learned Adhoc Additional Sessions Judge, Gunupur,
confirming the conviction of the petitioner for commission of
offence under Section 376 of Indian Penal Code (in short "IPC"),
by the learned Assistant Sessions Judge, Gunupur in Sessions Case
No. 5 of 1997 by judgment and order dated 27.01.1999 and
sentencing him to undergo Rigorous Imprisonment (in short "R.I.")
for a period of five years and to pay a fine of Rs.1000/-, in default
of payment to under R.I. for further one month (by reducing the
substantive sentence imposed by the learned trial court) The
petitioner also challenges the judgment and order dated
27.01.1999 of the learned Assistant Sessions Judge, Gunupur,
convicting him for commission of the offence under Section 376
IPC and sentencing him to undergo R.I. for a period of seven
years and to pay a fine of Rs.1,000/-, in default of payment to
undergo R.I. for further one month. The learned trial court had
directed the period of detention as UTP to be set off against the
sentence awarded to the petitioner and the fine amount, if realized
to be given to the victim (P.W.1) as compensation.
PROSECUTION CASE
2. The prosecution allegation in brief is that, on 28.08.1996
at about 5.00 p.m. at village Samadala while the victim (P.W.1)
was returning to her house after attending the call of nature, the
petitioner forcibly dragged her to the nearby bushes sat on her and
forcibly committed rape on her.
DEFENCE PLEA
3. The defence plea was of denial of the prosecution case
and false implication.
WITNESSES
4. During course of trial, in order to prove its case, the
prosecution examined 14 witnesses. The defence did not examine
any witness.
P.W.1 is the victim (name withheld). P.W.2 Maldore
Bhima, P.W.4 Basari Bala, P.W.5 Basari Dhanarjay and P.W.7
Mina Rao Maladora are the independent witnesses. P.W.3 Narala
Krishna, P.W.6 Narala Mutiala and P.W.8 Narala Narasingh are
the relations of the victim. P.W.9 Ganesh Nag, P.W.10 P.
Jagannath Patra and P.W.11 Bhagat Bathara are the witnesses to
seizure and have not supported the seizure. P.W.12 Laxmidhar
Dalu and P.W.14 Debi Prasad Dash are the Investigating Officers
and P.W.13 Dr. Ashok Kumar Mund is the doctor.
EXHIBITS AND M.Os.
5. The prosecution exhibited twelve documents. Exts.1, 2
and 7 are the seizure lists, Ext.3 is the written report, Ext.4 is the
spot map, Ext.5 is the carbon copy of the requisition, Ext.6 is the
carbon copy of the injury report, Exts.8 and 9 are the report of
P.W.13, Ext.10 is the query made by I.O., Ext.11 is the crime
details report and Ext.12 is the C.E. report.
The prosecution proved five material objects. M.O. I is
the saree, M.O.II is the blouse, M.O.III is the towel, M.O.IV is a
bottle containing urethral swab and M.O.V is the bottle containing
vaginal Swab.
The defence did exhibited one documents. Ext.A is the
intimation.
TRIAL COURT JUDGMENT
6. The learned trial Court on analysis of materials and
evidence on record came to a conclusion that the prosecution has
conclusively proved and established beyond reasonable doubt the
prosecution case and held the petitioner guilty for the offence
under Section 376 of IPC and sentenced him in the manner
mentioned earlier.
APPELLATE COURT JUDGMENT
7. The learned Appellate Court did not find any reason to
interfere with the conviction of the petitioner and maintained the
conviction and dismissed the appeal. But while upholding the
conviction of the petitioner, found on verification of the record
found that after judgment the petitioner was in custody on
27.01.1999 and though the bail orders had been passed by the
learned Addl. Sessions Judge, Rayagada, he did not go on bail
within the stipulated time, but after obtaining fresh bail order from
the Court of Addl. Sessions Judge, Rayagada he got himself
released on bail on 02.12.1999. Besides he had remained in
custody as an UTP, during trial for some days. Considering all
these aspects and as the occurrence took place on 28.08.1996 i.e.
more than 8 years ago, modified the sentence of imprisonment
from seven years to five years R.I. and maintained the sentence of
fine of Rs.1000/- in default to undergo R.I. for one month and the
direction to pay the fine amount after realization as compensation
to the victim lady.
SUBMISSIONS
8. Challenging the impugned judgments, Mr. Nalinikanta
Dash, learned counsel for the petitioner has submitted:-
i) the medical evidence contradicts the evidence of the prosecutrix,
as it has been opined by P.W.13 the doctor that there is no sign of
recent sexual intercourse. But both the Courts failed to consider
that the medical evidence of P.W.13 does not support the allegation
of rape and thus there was no corroborative evidence to support the
allegation of the victim-P.W.1.
ii) The injuries found on the person of the P.W.1, as suggested by
P.W.13, are possible by a blunt pointed object and rough surface,
but were not possible on fall over soft sandy soil. As P.W.1
categorically admitted in her deposition that, it was a rainy season
and on the date of occurrence there was rain, so the question of her
sustaining any injury did not arise. So, the injuries found on P.W.1
were not possible.
iii) Bothe the Courts have failed to consider the possibility of false
implication by P.W.1, despite evidence of a prior case filed by the
accused against the prosecution party, and P.W.1 admitting in her
deposition regarding longstanding caste-based animosity and a civil
dispute.
iv) P.W.1 has stated that the incident occurred 30 feet from the
village and near the place of occurrence cultivators were
transplanting paddy but the prosecution has failed to produce any
independent witnesses who should have been alerted by the tussle
between the P.W.1 and the accused. P.W.7 has stated he saw P.W.1
coming by crying while on his way to his land. If his statement and
statement of P.W.1 are read together, then P.W.7 should have also
seen the accused, fleeing from the spot, as the place of occurrence
is only 30 feet from the village, but he has not seen him.
v) The victim does not know Oriya and P.Ws.12 and 14 did not
know Telugu, so the circumstances behind lodging of FIR is
doubtful.
vi) He has further submitted that the petitioner was all along on
bail during trial as well as during appeal and has never mutualized
the liberty granted to him, so if his conviction is maintained, the
substantive sentence may be reduced.
9. Ms. S. Mishra, learned Addl. Standing Counsel for the
State opposed the contentions of the petitioner and submitted that
both the Trial Court and the Appellate Court have rendered their
findings after a thorough and fair evaluation of the evidence on
record, for which no interference in the judgments is called for.
She has further submitted that the testimony of the
prosecutrix (P.W.1) is consistent and credible, and therefore her
statement alone is sufficient to base a conviction and corroboration
is not necessary as per settled legal principles. The absence of
recent signs of sexual intercourse in the medical report does not by
itself discredit the entire prosecution case, especially when there is
a reasonable explanation and delay in medical examination. She
has further submitted that minor discrepancies or the non-
examination of supposed independent witnesses cannot be held to
be fatal to the case of the prosecution when the testimony of victim
is cogent and reliable. As regards the plea of enmity, she has
submitted that even if it is proved, it is a double-edged weapon and
does not entitle the accused to an acquittal could have been reason
for. The Courts below have rightly considered these aspects. She
has relied on the following cases in support of her submission:-
(i) Rameshwar vs. The State of Rajasthan : 1952 AIR SC 54.
(ii) State of Himachal Pradesh vs. Raghubir Singh : 1993 (2)
SCC 622.
JUDICIAL PRONOUNCEMENTS
10. In the case of Rameshwar (supra), the Hon'ble Supreme
Court has observed as follows:
"The first question is whether the law requires
corroboration in these cases. Now the Evidence
Act now here says so. On the other hand, when
dealing with the testimony of an accomplice, though
it says in section 114 (b) that the Court may presume
that an accomplice is unworthy of credit unless he is
corroborated in material particulars, it makes it
clear in section 133 that-
"An accomplice shall be a competent witness
against an accused person; and a conviction
is not illegal merely because it proceeds
upon the uncorroborated testimony of an
accomplice."
Now a woman who has been raped is not an
accomplice. If she was ravished she is the victim of
an outrage. If she consented there is no offence
unless she is a married woman, in which case
questions of adultery may arise. But adultery
presupposes consent and so is not on the same
footing as rape. In the case of a girl who is below
the age of consent, her consent will not matter so far
as the offence of rape is concerned, but if she
consented her testimony will naturally be as suspect
as that of an accomplice. So also in the case of
unnatural offences. But in all these cases a large
volume of case law has grown up which treats the
evidence of the complainant somewhat along the
same lines as accomplice evidence though often for
widely differing reasons and the position now
reached is that the rule about corroboration has
hardened into one of law"...
In the case of Raghubir (supra), the Supreme Court has
held as under:-
"In making the above observations, obviously the
High Court ignored the testimony of Doctor Urmil
Gupta who had found the presence of blood-stains
and the mud on the shawl and who had opined that
the bleeding from the edges of the vagina was slight
and that some amount of clotted blood was also
present. The prosecutrix was a girl of tender age
and on account of the rape committed on her, there
was bleeding from her vagina but to expect that the
shawl should have got "drenched with blood" as if
the large blood arteries had been cut, is letting the
imagination run wild and ignoring the
circumstances of the case. The absence of
spermatoza on the vaginal slide, which was also
pressed into aid by the High Court to acquit the
respondent, was not based on proper scrutiny of the
evidence. The prosecution case itself was that on
being surprised while the respondent was in the act
of committing sexual intercourse on the prosecutrix,
he ran away carrying his underwear. The absence of
spermatoza under the circumstances could not be
said to be a circumstance in favour of the
respondent at all. The judgment of the High Court,
in our opinion, is based more on surmises and
conjectures than on proper appreciation of evidence.
It exposes the insensitivity of the learned Judge to
the serious crime committed against human dignity.
We are not impressed by the manner in which the
High Court dealt with the case. Courts must be
wary, circumspect and slow to interfere with
reasonable and proper findings based on
appreciation of evidence as recorded by the lower
courts, before upsetting the same and acquitting an
accused involved in the commission of heinous
offence of rape of hapless girl child.
Dr. Ghatate, learned senior counsel for the
respondent submitted, by reference to Rahim Beg &
Anr. v. State of U.P., [1972] 3 SCC 759, that the
absence of injuries on the penis of the respondent
should be treated as sufficient to the negative
prosecution case. We are afraid we cannot agree.
Inferences have to be drawn in every case from the
given set of facts and circumstances. There is no
inflexible axiom of law which lays down that the
absence of injuries on the male organ of the accused
would always be fatal to the prosecution case and
would discredit the evidence of the prosecutrix,
otherwise found to be reliable. The presence of
injuries on the male organ may lend support to the
prosecution case, but their absence is not always
fatal. Rahim Beg's case (supra) was based on its
peculiar facts and the observations mate therein
were in a totally different context and cannot
advance the case of the respondent. The
observations in Rahim Beg's case (supra) cannot be
mechanically pressed into aid in every case
regardless of the specific circumstances of the crime
and absence of the fact situation as existing in that
case. Every case has to be approached with realistic
diversity based on peculiar facts and circumstances
of that case. Doctor Sharma who had examined the
respondent had found him to be capable of sexual
intercourse and according to his opinion the
absence of injury on his male organ was not
suggestive of the fact that he had not indulged in
sexual intercourse with the prosecutes then of tender
years of age. His evidence was not at all challenged
on this aspect by the defence.
Thus, considered on the whole. we are of the
opinion that the judgment of the High Court is based
on conjectural findings and cannot be sustained. The
same deserves to be set aside and is hereby setaside.
The reasoning given by the learned Sessions Judge
and the findings recorded by him on appreciation of
evidence have appealed to us and we find no reason
to take a view different than the one taken by the
learned Sessions Judge."
In the case of Wahid Khan vs State Of M.P: AIR 2010
SC 1, the Supreme Court has observed as follows:
"21. It is also a matter of common law that in Indian
society any girl or woman would not make such
allegations against a person as she is fully aware of the
repercussions flowing therefrom. If she is found to be
false, she would be looked by the society with contempt
throughout her life. For an unmarried girl, it will be
difficult to find a suitable groom. Therefore, unless an
offence has really been committed, a girl or a woman
would be extremely reluctant even to admit that any such
incident had taken place which is likely to reflect on her
chastity. She would also be conscious of the danger of
being ostracized by the society. It would indeed be
difficult for her to survive in Indian society which is, of
course, not as forward looking as the western countries
are.
22. Thus, in a case of rape, testimony of a prosecutrix
stands at par with that of an injured witness. It is really
not necessary to insist for corroboration if the evidence
of the prosecutrix inspires confidence and appears to be
credible."
In the case of Phool Singh vs. State of Madhya Pradesh
: (2022) 2 SCC 74, the Supreme Court has held as follows :-
"10. In the case of Sham Singh v. State of
Haryana, (2018) 18 SCC 34, it is observed that
testimony of the victim is vital and unless there are
compelling reasons which necessitate looking for
corroboration of her statement, the courts should
find no difficulty to act on the testimony of the victim
of sexual assault alone to convict an accused where
her testimony inspires confidence and is found to be
reliable. It is further observed that seeking
corroboration of her statement before relying upon
the same, as a rule, in such cases amounts to adding
insult to injury. In paragraphs 6 and 7, it is observed
and held as under:
"6. We are conscious that the courts
shoulder a great responsibility while trying
an accused on charges of rape. They must
deal with such cases with utmost sensitivity.
The courts should examine the broader
probabilities of a case and not get swayed by
minor contradictions or insignificant
discrepancies in the statement of the
prosecutrix, which are not of a fatal nature,
to throw out an otherwise reliable
prosecution case. If the evidence of the
prosecutrix inspires confidence, it must be
relied upon without seeking corroboration of
her statement in material particulars. If for
some reason the court finds it difficult to
place implicit reliance on her testimony, it
may look for evidence which may lend
assurance to her testimony, short of
corroboration required in the case of an
accomplice. The testimony of the prosecutrix
must be appreciated in the background of the
entire case and the court must be alive to its
responsibility and be sensitive while dealing
with cases involving sexual molestations or
sexual assaults. [See State of Punjab v.
Gurmit Singh [State of Punjab v. Gurmit
Singh, (1996) 2 SCC 384] (SCC p. 403, para
21).]
7. It is also by now well settled that the
courts must, while evaluating evidence,
remain alive to the fact that in a case of
rape, no self-respecting woman would come
forward in a court just to make a humiliating
statement against her honour such as is
involved in the commission of rape on her. In
cases involving sexual molestation, supposed
considerations which have no material effect
on the veracity of the prosecution case or
even discrepancies in the statement of the
prosecutrix should not, unless the
discrepancies are such which are of fatal
nature, be allowed to throw out an otherwise
reliable prosecution case. The inherent
bashfulness of the females and the tendency
to conceal outrage of sexual aggression are
factors which the courts should not overlook.
The testimony of the victim in such cases is
vital and unless there are compelling reasons
which necessitate looking for corroboration
of her statement, the courts should find no
difficulty to act on the testimony of a victim
of sexual assault alone to convict an accused
where her testimony inspires confidence and
is found to be reliable. Seeking
corroboration of her statement before
relying upon the same, as a rule, in such
cases amounts to adding insult to injury. (See
Ranjit Hazarika v. State of Assam [Ranjit
Hazarika v. State of Assam, (1998) 8 SCC
635)."
11. Applying the law laid down by this Court in the
aforesaid decisions to the facts of the case on hand
and as observed hereinabove, we see no reason to
doubt the credibility and/or trustworthiness of the
prosecutrix. She is found to be reliable and
trustworthy. Therefore, without any further
corroboration, the conviction of the accused relying
upon the sole testimony of the prosecutrix can be
sustained."
ANALYSIS
11. It is not disputed that a conviction under Section - 376 of
the I.P.C can be based on the sole testimony, of a prosecutrix,
provided her evidence inspires confidence and does not suffer from
any basic infirmity.
12. For deciding whether the evidence of P.W.1, the
prosecutrix is reliable and whether it has been corroborated by the
evidence of other witnesses, it is necessary to carefully scrutinize
her evidence and the evidence of the other witnesses.
13. Other than P.W.9, P.W.10 and P.W.11 who were the
seizure witnesses, the other witnesses have supported the
prosecution case.
EVIDENCE OF THE PROSECUTRIX
14. P.W.1 the victim lady has fully supported and
corroborated the prosecution case and testified that while she was
returning to her house after attending the call of nature, the accused
detained her on the way. She protested, but the accused forcibly
took her by catching hold of her neck and hand to a nearby bushy
and dragged her wearing clothes and made her naked and due to
such dragging, her wearing clothes were torn. She also stated that
the accused sat over her and committed rape by penetrating his
penis into her vagina and when she pushed and kicked him by
shouting, the accused fled away. She stated that there was
discharge of semen during the rape. She also stated that after the
incident, she had been to her mother-in-laws' house and informed
her about the incident and while narrating the incident her mother-
in-law was alone in the house. She also stated that she reported the
incident at Jagadalpur Out-Post and one Bhima (P.W.2) and
Krishna (P.W.3) and another person of her village have
accompanied her to the Out-Post and she orally reported the
incident which was reduced into writing by the police and the
contents of F.I.R. was read over and explained after which she put
her R.T.I. She has stated that she was medically examined on
police requisition by the M.O. She also identified M.O.I and M.O.II
i.e. saree and blouse and her wearing apparels at that time of
committing rape and the accused was wearing one white
Gamuchha and was holding one towel.
In her cross-examination, she has stated that she belongs
Dora caste and accused is Damba by caste and they are residing in
separate sahis. She denied that there was exchange of hot words
with "Damba" caste people for taking water from boring point
directly. She denied that on the occurrence day the accused came to
the boring point (tubewe11) to fetch water to which she objected
and that she told her caste people and that her caste people had
assaulted the accused. She however stated that some of the
prosecution witnesses have been released on bail from the court of
J.M.F.C., Bissamcuttack and the case is still pending in the Court
of J.M.F.C., Bissamcuttack. She stated that there was no mud on
the place of occurrence, but it was a soft land, the accused dragged
her upto 20 feets. The accused dragged her saree, as a result it was
tore. The under-wear cloth behind the saree was also removed.
Before attending the call of nature, she had removed her blouse
with a view to take bath and was holding the blouse in her hand.
She stated that while the accused slept over her, her hands were
free and the accused at the relevant time was pressing her chest by
both of his hands. The accused was penetrating till ejaculation. The
above incident took place within three to four minutes and at the
relevant time she did not ty either to bite him or to make any
scratch by her nails. She reported the above facts orally at the
Jagadalpur Out-Post in Telugu language which police wrote in
Oriya. She denied not to have stated in her F.I.R. and before the
police that there was discharge of semen while committing rape on
her and that the accused forcibly took her by catching hold of her
neck to a nearby bush and that while the accused was committing
rape on her, she pushed and kicked him. She also stated that during
life time of her husband there was a dispute between her husband
and the accused due to a piece of land that dispute is still in
existence. She however denied that a false case has been foisted
against the accused.
15. After going through her evidence including her cross
examination, except for minor inconsistencies whether she lodged
FIR in Oriya or Telegu, I find no reason to doubt her testimony.
EVIDENCE OF OTHER WITNESSES
16. P.W.3 Narala Krishna, who is one of the brother-in-law
of victim has stated that at the relevant time P.W.1 came to his
house and narrated the incident before his mother and he was
present at that time along with his wife and that his mother told
about the said incident to P.W.8 Narasingh and the said Narasingh
went to the house of P.W.2 Bhima and thereafter Narasingh and
others went to the house of accused to enquire into the matter and
sometime thereafter hearing hullah he came out and found the said
persons returning and they told that the accused assaulted Sukadev.
In his cross-examination he has admitted that he has not seen the
actual occurrence.
P.W.6 Narala Mutiala, the wife of P.W.8 has stated that
on the occurrence day evening, P.W.1 came to her house crying
and narrated the incident to her mother-in-law and to her (P.W.6)
and P.W.1 told that the accused forcibly committed rape on her by
dragging to a nearby bushy.
P.W.8 Narala Narasingh the other brother-in-law of
informant has also corroborated the said evidence.
P.W.2 Maldore Bhima, P.W.4 Basari Bala and P.W.5
Basari Dhanarjay who are some of the co-villagers have also stated
that Narala Narasingh (P.W.8) told them about the incident.
P.W.7 Mina Rao Maladora, in his evidence has stated
that at the relevant time while he was passing to his land, she found
P.W.1 returning to her house crying and he heard from the family
members of P.W.1 that the accused forcibly committed rape on her.
P.W.12 Laxmidhar Dalu was the A.S.I. of Police of
Jagadalpur Out-Post. He has stated that P.W.1 came to the
Jagadalpur Outpost and orally lodged information by narrating the
entire incident which he reduced to writing. she put her RTI on the
report Ext.3 after the contents were read over and explained to her
and she understood the contents. He sent the report to the
Amabodola Police Station and the case was registered and he was
entrusted with the investigation. He examined P.Ws.1, 2 and 3.
Next morning he visited the spot prepared spot map Ext.4
examined other witnesses issued requisition to the Medical Officer,
Amabadola Hospital for examination of the victim. On 30.08.1996,
he seized the wearing apparel of the victim vide Seizure list Ext.1
He seized one towel ascertained with blood M.O.III of the accused
vide Seizure list Ext.7 on 31.08.1996, he handed over investigation
to OIC Devi Prasad Das P.W.14. In cross examination he says he
does not know Telugu and the victim reported the incident in Oriya
language. P.W.1 coming to Police Station reporting orally and he
reduced the same into writing. He also stated about the details of
his investigation which have been indicated earlier. In his cross-
examination he stated that he identified the seized saree as M.O.I
and the blouse M.O.II (both are of victim-lady) and the seized
towel of the accused M.O.III. He denied that the informant
reported in Telugu language and without understanding the
contents he reduced it into writing implicating the accused in this
case.
P.W.13 Dr. Ashok Kumar Mund, in his evidence has
stated that on examination of P.W.1 (the victim), be found one
linear abrasion with dark brown scab inch long on the upper part of
the right scapula, one linear abrasion with dark brown scab half an
inch long on the back of the right arm two inches below the
shoulder joint and one abrasion with dark brown scab half an inch
long on the medial side of left leg just above the ankle joint and
opined that the injuries were simple in nature. He also stated that
no injury was found on her private parts and no sign of recent
sexual intercourse was detected and no foreign particles were
found on the public hair, vulva and inside the vagina and no sign of
any seminal stain was found over the thighs, vulva and the public
hair and no smegma was found inside the vagina and spermatozoa
was not detected on microscopic examination of the vaginal smear
and vaginal swab and smear has been preserved and stated Ext-8 is
the medical examination report. He also stated that on 30.08.1996,
(the same day) he examined the accused and found two lacerated
wounds, one on the head and another on the right ear, 8 bruises
with abrasion found on the different parts of the body which have
been described in detail in the other injury report. He also stated
that no injury was found on the penis. There was collection of
smegma around the corona gland is no foreign particle was
detected on the penis or in the public hairs, there was no matting of
public hairs. No mark of any seminal stain was detected on the
penis, scrotum and inside of the thigh and no sign of any venereal
disease was found on the penis and stated that Ext.9 is his report.
He also stated that the I.O. made a query and replied that the
injuries found on the victim lady can be caused due to resistance of
the victim when she was dragged, laid down and raped and the
injuries can be caused due to the offensive act of the accused while
including the casual crime and injury Nos.1 and 2 can be friction
against any blunt pointed object clue to fall on the around.
P.W.14 Debi Prasad Dash was the O.I.C. of Ambadola
Police Station, in his evidence has stated about the investigation
conducted by him. In his cross-examination he has stated that he
cannot speak Telugu. He did not ask the victim in Telugu language.
The chemical examination report under Ext.12 reveals that semen
stains were not detected in the seized saree, towel and blouse and
urethral swab of the accused and virginal swab of the victim.
17. The contention as the victim does not know Odia and the
I.Os. do not know Telugu, the prosecution case should be rejected
is not tenable as the FIR and statements of the witnesses recorded
under Section 161 Crl.P.C. are to be used for the purpose of
corroboration or contradiction and are not substantive evidence.
The defence has not been able bring out any vital contradiction in
the evidence of P.W1 the victim inspite of her lengthy cross
examination.
18. The victim being a married lady, absence of recent signs
of sexual intercourse on her private parts are natural. For the same
reason, there can be absence of injury on the penis of the accused.
Absence of injuries do not in any way affect the prosecution case.
19. The submissions of the learned counsel for the petitioner
that the injuries sustained by the victim on her back are not
possible on a muddy surface have been made only to be rejected as
the victim has stated that she had been dragged to the bushes.
P.W.13 the Doctor has corroborated her evidence.
20. Minor contradictions are natural and do not affect the
genuineness of the prosecution case. There was some ill feeling
between the family of the victim and the petitioner, and a case
instituted during the lifetime of her husband was pending was
pending but that cannot be a ground for disbelieving her evidence.
In view of such background her evidence is required to be
scrutinized carefully to ensure that she is not making false
allegations but her evidence cannot be mechanically rejected.
21. Evidence of P.W.1, the victim is corroborated by the
evidence of her relatives - P.Ws. 2, 4 and 5. P.W.7 has stated that
she found the victim returning crying and subsequently learned
about the rape. It is natural that the victim did not tell him about the
rape before informing her family members.
22. The evidence of P.Ws.3, 5 and 8 corroborate the
evidence of the victim. Doctor has opined that the injuries on the
victim are possible due to resistance of a victim who has fallen
down and is being dragged, laid down and raped.
23. The doctor P.W.13 has stated that he examined the
accused on 30.08.1996 and found two lacerated injuries -one on the
head and one on the right ear. This also indicate of resistance by
the victim of recent sexual intercourse corroborate her evidence.
24. I find no apparent error or illegality in the reasoning of
the two Courts nor do I find that the two Courts have ignored any
evidence. As I find no justification to interfere with the findings of
the two Courts or their judgments, the conviction of the petitioner
for commission of offence under Section - 376 of IPC is
confirmed.
25. The learned Appellate Court has already dealt with the
petitioner lightly by reducing the substantive sentence imposed for
commission of the offence under Section 376 of IPC from seven
years rigorous imprisonment to five years. There is no scope for
further reduction of the sentence to less than five years. The
sentence imposed by the learned appellate court is therefore
confirmed.
26. The Criminal Revision is dismissed.
27. The petitioner is on bail. He should surrender within a
period of eight weeks to serve out the remainder of his sentence.
28. The trial court records be returned to the learned trial
court alongwith a copy of this judgment.
...........................
(Savitri Ratho)
Judge
Orissa High Court, Cuttack.
The 30th May, 2025.
S.K. Behera, Senior Stenographer.
Signed by: SUKANTA KUMAR BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 12-Jun-2025 19:34:58
