Orissa High Court
Harihar Behera vs Mantu @ Dinabandhu Bholla on 30 May, 2025
Author: Savitri Ratho
Bench: Savitri Ratho
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No. 422 of 2006
An application under Sections 401 of the Code of Criminal Procedure
challenging the judgment and order dated 16.05.2006 of learned C.J.M.-
cum-Assistant Sessions Judge, Khurda camp at Bhubaneswar in S.T. No.
91/131 of 2000.
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Harihar Behera ...... Petitioner
-versus-
1. Mantu @ Dinabandhu Bholla
2. State of Orissa ...... Opp.Parties
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For Petitioner : Ms. Anitarani Panda, Advocate
On behalf of Mr. Ramanikanta
Pattnaik, Advocate
For Opp. Parties : None (For O.P. No. 1)
Mr. S.S. Mohapatra, A.S.C.
(For O.P. No.2)
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CORAM:
HONOURABLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
30.05.2025
Savitri Ratho, J This Criminal Revision has been filed by the petitioner
challenging the judgment and order of acquittal dated 16.05.2006
passed in S.T. No. 91/131 of 2000 by the learned C.J.M.-cum-
Assistant Sessions Judge, Khurda Camp at Bhubaneswar,
acquitting the present opposite party no.1 from the charge under
Section 376 of IPC.
PROSECUTION CASE
2. The prosecution allegation in brief is that, on 17.06.1997
at about 8.00 P.M., on the request of one Sanatan Sahoo-P.W.7 to
the wife of the petitioner, to send her daughter (victim girl) to assist
them in cooking, the victim went to the house of Sanatan Sahoo
and found that there was no Kerosene oil in the stove. Thereafter
Sanatan went outside to bring Kerosene. Taking advantage of his
absence, the present opposite party no.1 entered inside the house of
Sanatan Sahoo, called the victim, put napkin on her mouth and
committed rape on her in spite of her protest. After the accused
went away, the victim came to her house narrated the incident
before her mother. Her mother informed Sanatan Sahoo, who
placed the matter before the village gentry and the matter was
settled by the village gentry where the opposite party no.1 by
putting garland on the victim, before the village deity, accepted her
as his wife. After five days, the opposite party no.1 and his parents
picked up quarrel with the victim, kicked her, dragged her out and
locked the house from outside and went away. Finding no other
alternative, the victim returned to her house and the matter was
orally reported before the OIC, Chandaka Police Station. On
01.07.1997, the accused came in the night and attempted to kill the
victim by a knife and left after threatening her. Therefore, the
petitioner lodged a complaint petition before the learned S.D.J.M.,
Bhubaneswar, who forwarded the same to the OIC, Chandaka
Police Station, case was registered and investigation commenced.
After completion of investigation, charge sheet under Sections
376/511 of IPC was submitted against the opposite party. The case
was committed to the court of Sessions Judge, Khurda at
Bhubaneswar and charge was framed against him for commission
of offence under Section 376 of IPC.
DEFENCE PLEA
3. The defence plea was one of complete denial of the
prosecution case and of false implication as the accused demanded
money which was due to him from the informant.
WITNESSES AND EXHIBITS
4. During course of trial, in order to prove its case, the
prosecution examined fourteen witnesses and one witness was
examined by the defence.
P.W.1- Dr. Chandrasekhar Naik is the doctor who had
conducted the ossification test of the victim girl. P.W.2-Hadi
Bhola, P.W.3-Bhabani Bhola, P.W.4-Chandra Sekhar Behera,
P.W.5-Bhaskar Behera, P.W.6-Prahallad Behera and P.W.8-
Gandharba Behera are co-villagers of the complainant (P.W.10).
P.W.7-Sanatan Sahoo is the witness in whose house the alleged
rape was committed. P.W.9 -Dr Santosh Kumar Mishra is the
doctor who had examined the victim girl. P.W.10-Harihar Behera
is the informant. P.W.11- is mother of the victim and wife of
P.W.10 and P.W.12 is the victim girl herself. P.W.13-Bhaskar
Natua is a teacher of Maharana Birabar Vidyapitha, Chandaka,
who had produced the School Admission Register. P.W.14-Deepak
Kumar Rath is the I.O.
The accused himself has been examined as D.W.1 in
support of his case.
The Prosecution exhibited 8 exhibits. Ext. 1 is the
Medical report, Ext. 2 is the injury report, Ext.3 is the pathologist
report, Ext.4 is the complaint petition by P.W.10, Ext. 5 is the
school leaving certificate, Ext.6 is the Admission register, Ext.7 is
the Formal FIR and Ext.8 is the forwarding letter of SDJM.
P.W.12, the victim girl has stated that on 17.06.1997
Sanatan 'dada' came to their house and requested her mother to
send her to his house for the purpose of cooking, since his family
members were not present and thereafter, being asked by her
mother, she went to Sanatan's house and that after arrival at his
house, since she did not find any kerosene there, Sanatan went out
to fetch kerosene. Her evidence further reveals that while she was
alone at his house accused Mantu @ Dinabandhu came inside
Sanatan's house and finding her alone, dragged her holding her left
arm and bolted the room from inside and thereafter he forcibly
made her lie on the ground and put off her 'Chadi' (inner garment)
and he inserted his private part into her private part and that while
she attempted to raise shout, he gagged her mouth with the help of
a napkin and that thereafter, he opened the door and went away.
P.W.12 further deposed that she returned home and narrated the
incident before her mother. From the evidence of P.W.12, it
appears that there is no other eye witness to the alleged occurrence
and rape was committed on her by the accused, while she was
alone in the house of P.W.7-Sanatan.
P.W. 11, mother of P.W.12 has stated that she came to
know about the incident from her daughter (P.W.12) and the
evidence of P.W.10 (complainant) reveals that he came to know
about the incident from his wife (P.W 11). Sanatan Sahoo, who has
been examined as P.W.7 did not support the prosecution case, by
denying his knowledge regarding the incident.
P.Ws 2, 4, 5 and 8 who are co-villagers of the informant
also did not support the prosecution case and denied their
knowledge about the same. P.W.3, also a co- villager, stated that he
did not know the accused or Harihar Behera the complainant and
his daughter and that he had not made any statement before the
police regarding the incident of this case.
P.W.6 who is also a co-villager of the accused and the
complainant stated that he did not participate in any meeting
concerning P.W 12 and the accused and that he had stated his lack
of knowledge regarding the incident to the police.
D.W.1 the accused himself has stated as there was
outstanding dues against P.W.10, false allegations have been made
against him.
JUDGMENT OF THE TRIAL COURT
5. The learned trial court arrived at the following findings : -
i) Commission of rape took place on 17.06.1997 night.
ii) P.W 10 filed a complaint case in Court and the complaint
petition ( Ext. 4 ) was treated as FIR.
iii) Date of filing of the complaint petition is not forthcoming, but
order had been passed by the S.D.J.M on 22.10.1997 to investigate,
so date of filing may be 22.10.1997
iv) The village meeting had been convened on 10.07.1997.
v) The evidence of P.W.s 10, 11 and 12 is not free from doubt.
vi) Delay in lodging FIR not satisfactorily explained.
vii) Not finding any evidence of recent sexual activity or injuries
on the victim, is natural as occurrence took place more than eight
months of the date of examination and cannot be a ground to
discard her evidence.
viii) The defence evidence is not reliable, but that cannot be a
ground to accept the prosecution case.
ix) The prosecution is to prove its case beyond reasonable doubt,
but in view of the earlier discussion, it would not be safe to rely on
sole evidence of P.W 12 regarding commission of rape and P.W.
10 and 11 regarding holding of meeting.
x) The accused is held not guilty under Section 376 of IPC and
is acquitted.
SUBMISSIONS
6. I have heard Ms. Anitarani Panda, learned counsel appearing
on behalf of the petitioner and Mr. S.S. Mohapatra, learned
Additional Standing Counsel for the opposite party no.2. A counsel
has appeared on behalf of opposite party No1, but none appeared
on his behalf when the matter was called and heard.
7. Ms. Panda learned counsel has submitted that the
impugned judgment deserves interference, in view of the testimony
of P.W 12, the prosecutrix. Her sole testimony was cogent and
trustworthy and enough to convict the petitioner, but it has been
illegally disbelieved. The learned trial Court should not have
looked for corroboration of the evidence of P.W 12. The learned
counsel should not have supported the prosecution case as the
ground of unexplained delay in lodging FIR as in a case of Section
376 of IPC delay in lodging FIR is natural.
8. Mr. S.S. Mohapatra, learned Addl. Standing Counsel has
submitted that the impugned judgment requires interference and
the case should be remanded for the purpose of re-trial. The
accused himself is responsible for delay in lodging FIR, as he had
put garland on the victim and taken her home as his wife and after
a few days, threw her out. That is why FIR had not been lodged
immediately, so the delay in filing FIR has been explained. Minor
discrepancies in the evidence of witnesses are natural and should
not have been taken as ground for acquitting the accused.
STATUTORY PROVISIONS
9. Section 397 and 401 of the Code of Criminal Procedure
which deal with the power of Revision of a High court are
extracted below :
"Section 397. Calling for records to exercise powers of
revision.--
(1) The High Court or any Sessions Judge may call for
and examine the record of any proceeding before any
inferior Criminal Court situate within its or his local
jurisdiction for the purpose of satisfying itself or himself;
to the correctness, legality or propriety of any finding,
sentence or order, recorded or passed, and as to the
regularity of any proceedings of such inferior Court, and
may, when calling, for such record, direct that the
execution of any sentence or order be suspended, and if
the accused is in confinement that he be released on bail
or on his own bond pending the examination of the
record.
Explanation.--All Magistrates, whether Executive or
Judicial, and whether exercising original or appellate
jurisdiction, shall be deemed to be inferior to the
Sessions Judge for the purposes of this sub-section and
of Section 398.
(2) The powers of revision conferred by sub-section (1)
shall not be exercised in relation to any interlocutory
order passed in any appeal, inquiry, trial or other
proceeding.
(3) If an application under this section has been made by
any person either to the High Court or to the Sessions
Judge, no further application by the same person shall
be entertained by the other of them".
"Section 401. High Court's powers of revision.--
(1) In the case of any proceeding the record of which has
been called for by itself or which otherwise comes to its
knowledge, the High Court may, in its discretion,
exercise any of the powers conferred on a Court of
Appeal by sections 386, 389, 390 and 391 or on a Court
of Session by section 307, and, when the Judges
composing the Court of Revision are equally divided in
opinion, the case shall be disposed of in the manner
provided by section 392.
(2) No order under this section shall be made to the
prejudice of the accused or other person unless he has
had an opportunity of being heard either personally or
by pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise
a High Court to convert a finding of acquittal into one
conviction.
(4) Where under this Code an appeal lies and no appeal
is brought, no proceeding by way of revision shall be
entertained at the instance of the party who could have
appealed.
(5) Where under this Code an appeal lies but an
application for revision has been made to the High Court
by any person and the High Court is satisfied that such
application was made under the erroneous belief that no
appeal lies thereto and that it is necessary in the
interests of Justice so to do, the High Court may treat the
application for revision as a petition of appeal and deal
with the same accordingly."
JUDICIAL PRONOUNCEMENTS
10. In the case of K.Chinnaswamy Reddy vs. State of Andhra
Pradesh reported in 1962 SCC OnLine SC 32 : AIR 1962 SC
1788, it has been held as follows: -
"It is true that it is open to a High Court in revision to set
aside an order of acquittal even at the instance of private
parties, though the State may not have thought fit to
appeal; but this jurisdiction should in our opinion be
exercised by the High Court only in exceptional cases,
when there is some glaring defect in the procedure or
there is a manifest error on a point of law and
consequently there has been a flagrant miscarriage of
justice. Sub-section (4) of Sec. 439 forbids a High Court
from converting a finding of acquittal into one of
conviction and that makes it all the more incumbent on
the High Court to see that it does not convert the finding
of acquittal into one of conviction by the indirect method
of ordering retrial, when it cannot itself directly convert
a finding of acquittal into a finding of conviction. This
places limitations on the power of the High Court to set
aside a finding of acquittal in revision and it is only in
exceptional cases that this power should be exercised. It
is not possible to lay down the criteria for determining
such exceptional cases which would cover all
contingencies. We may however indicate some cases of
this kind, which would in our opinion justify the High
Court in interfering with a finding of acquittal in
revision. These cases may be: where the trial court has
no jurisdiction to try the case but has still acquitted the
accused, or where the trial court has wrongly shut out
evidence which the prosecution wished to produce, or
where the appeal court has wrongly held evidence which
was admitted by the trial court to be inadmissible, or
where material evidence has been overlooked either by
the trial court or by the appeal court, or where the
acquittal is based on a compounding of the offence,
which is invalid under the law. These and other cases of
similar nature can properly be held to be cases of
exceptional nature, where the High Court can justifiably
interfere with an order of acquittal; and in such a case it
is obvious that it cannot be said that the High Court was
doing indirectly what it could not do directly in view of
the provisions of Sec. 439 (4). We have therefore to see
whether the order 'of the High Court setting aside the
order of acquittal in this case can be upheld on these
principles."
In the case of Chandrappa vs. State of Karnataka :
(2007) 4 SCC 415, the Supreme Court has laid down the general
principles for an appellate court to follow in a case of appeal
against acquittal , which are as follows :-
"(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the
order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such
power and an appellate court on the evidence before it
may reach its own conclusion, both on questions of fact
and of law.
(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient grounds",
"very strong circumstances", "distorted conclusions",
"glaring mistakes", etc. are not intended to curtail
extensive powers of an appellate court in an appeal
against acquittal. Such phraseologies are more in the
nature of "flourishes of language" to emphasise the
reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to review
the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that
in case of acquittal, there is double presumption in
favour of the accused.
Firstly, the presumption of innocence is
available to him under the fundamental principle of
criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by a
competent court of law.
Secondly, the accused having secured his
acquittal, the presumption of his innocence is further
reinforced, reaffirmed and strengthened by the trial
court.
(5) If two reasonable conclusions are possible on the
basis of the evidence on record, the appellate court
should not disturb the finding of acquittal recorded by
the trial court"
In Dilawar Singh v State of Haryana, (2015) 1 SCC 737,
the Supreme Court reiterated the same in Paragraph 37 of its
judgment after holding as follows in paragraph 36 :-
"36. The court of appeal would not ordinarily interfere
with the order of acquittal unless the approach is vitiated
by manifest illegality. In an appeal against acquittal, this
Court will not interfere with an order of acquittal merely
because on the evaluation of the evidence, a different
plausible view may arise and views taken by the courts
below is not correct. In other words, this Court must
come to the conclusion that the views taken by the
learned courts below, while acquitting, cannot be the
views of a reasonable person on the material on record."
ANALYSIS AND CONCLUSION
11. That the scope of interference in a criminal revision
petition filed by the informant against an acquittal order passed by
the court below is very limited, is no longer res integra . Section
439(4) of the old Code of Criminal Procedure corresponds to
Section- 401(3) of the 1973 Code 9 and Section 442(3) of the
Bharatiya Nagarik Surakshya Sanhita 2023, which prohibits the
High Court from turning an order of acquittal to one of conviction.
So in exceptional cases, in a revision against acquittal, when there
is some glaring defect in the procedure or there is a manifest error
on a point of law and consequently there has been a flagrant
miscarriage of justice, the maximum the High Court can do is to
remand the case for retrial. This legal position has been reaffirmed
by the Hon'ble Supreme Court in several cases.
12. I have carefully perused the impugned judgment of the
learned trial Court and other materials on record and heard the
learned counsel for the parties.
13. P.W.s 2, 3, 4, 5 and 6 the independent witnesses have not
supported the prosecution case. Hence a close scrutiny of the
evidence of P.W.10, 11 and 12 is necessary.
14. The evidence of P.W.s 10, 11 and 12 is not consistent
regarding filing of FIR. The violence of three witnesses also does
not reveal why the victim - P.W 12 waited for so long, before
making allegations against the petitioner.
15. The learned trial Court after examining the evidence of the
victim and her parents found that the delay in lodging FIR has not
been explained.
16. The independent witnesses did not support the prosecution
case for which the learned trial court examined the evidence of
P.W.s 1to 12 and found that they do not inspire confidence.
` 17. That the victim and her family members agreed with the
decision of the Village Committee that he should marry her, also
creates doubt regarding the prosecution case.
18. As held by the Supreme Court in an umpteen number of
cases - the court of appeal would ordinarily not interfere with the
order of acquittal unless the approach is vitiated by manifest
illegality or was not a view which a reasonable man would take on
the basis of materials on record. The scope of a revision is all the
more constricted.
19. The scope of revision against acquittal filed by a private
party is very limited. Only in exceptional cases where there is some
glaring defect in the procedure or manifest error or illegality,
perversity or infirmity in the judgment of the lower Court which
had resulted in flagrant miscarriage of justice, the High Court can
interfere. It is to be kept in mind that in a revision against acquittal,
even where satisfied that the impugned of acquittal requires
interference, the maximum a revisional court can do, is to remand
the case to the trial Court below for retrial.
20. About thirty years have elapsed since the date of the
occurrence.
21. Having regard to the entire evidence of the prosecution, this
Court is of the opinion that the conclusion arrived at by the trial
court to the effect that the prosecution failed to prove its case
against the accused beyond reasonable doubt, does not deserve
interference after so many years.
. 22. The Criminal Revision is dismissed.
...........................
(Savitri Ratho, J)
Judge
Orissa High Court, Cuttack.
The 30th May, 2025.
Subhalaxmi, Junior Stenographer.
Signed by: SUBHALAXMI PRIYADARSHANI
Location: Orissa High Court, Cuttack
Date: 09-Jun-2025 16:19:50
