Orissa High Court
Niranjan Swain vs State Of Orissa ...... Opp. Party on 30 May, 2025
Author: Savitri Ratho
Bench: Savitri Ratho
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No. 18 of 2007
An application under Section 401 Cr.P.C. 1973 arising out of the order
dated 28.01.2006 passed by the learned C.J.M.-cum-Assistant Sessions
Judge, Deogarh in S.T. Case No. 77/2 of 2004.
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Niranjan Swain ...... Petitioner
-versus-
State of Orissa ...... Opp. Party
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For Petitioner : Mr. S. Panda, Advocate
on behalf of Mr. D. Panda, Advocate
For Opp. Party : Ms. S. Mishra, A.S.C.
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CORAM:
HONOURABLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
30.05.2025
Savitri Ratho, J. This application under Section 401 of the Code of
Criminal Procedure has been filed by the petitioner challenging the
judgment dated 09.11.2006 in Criminal Appeal No. 04 of 2006
passed by the learned Additional Sessions Judge, Deogarh
confirming the conviction and sentence of the petitioner under
Section 354 of IPC vide judgment dated 28.01.2006 passed in S.T.
Case No. 77/2 of 2004 by the learned C.J.M.-cum-Assistant
Sessions Judge, Deogarh who had convicted him for commission
of offence under Section 354 of IPC and sentenced him to undergo
R.I. for one year.
PROSECUTION CASE
2. The prosecution allegation in brief is that on 03.10.2002
at about 8.00 A.M., the victim had gone to her land and while she
was plucking leaves and tooth sticks in the hillock, the petitioner
came from behind and caught hold of her hair and gagged her
mouth with a napkin. He forcibly made her lie down and sat on her
chest and again gagged her mouth with the napkin and pressed her
face and nose. With one hand he was holding napkin and with the
other he removed her saree with intention to commit rape. The
victim removed the napkin and started shouting. So the petitioner
left her and fled from the spot. The victim sustained bleeding
injury in her mouth. She started crying and narrated the incident to
P.Ws. 3 and 4, two women who were standing nearby. She lodged
an F.I.R. and after completion of investigation, charge sheet was
submitted against the petitioner under Sections 376/511 of IPC.
CHARGE
3. In the trial, the petitioner was charged under Sections
376/511 of IPC.
DEFENCE PLEA
4. The defence plea was one of denial and false implication.
WITNESSES
5. The prosecution examined 8 witnesses and one witness
was examined by the defence. P.W.1-Kanchana Pradhan, P.W.3-
Prema Majhi and P.W.4-Jyotimanjari Pradhan are the post
occurrence witnesses before whom the victim narrated the
occurrence. P.W.2 is the informant-victim. P.W.5-Santosh Sahu
and P.W.6-Gagan Kisan are witnesses to seizure of M.Os. I, II and
III. P.W.7-Dr. Purna Chandra Pradhan is the doctor who examined
the victim and submitted injury/medical report vide Ext.3. P.W.8-
Benudhar Bhoi is the Investigating Officer who conducted the
investigation and submitted chargesheet against the petitioner.
The petitioner has examined one Chandala Bagh as
D.W.1.
P.W.2 is the victim. She has stated that the occurrence
took place three years back at 8.00 A.M. morning near her land at
'Huli'. At that time she went to see her land. While she was
plucking tooth stick (Dantakathi) the petitioner-Niranjan Swain
came secretly from her back, caught hold of the hair of her head
and gagged napkin in her mouth, pushed her on the ground and
made an attempt to remove her saree to commit rape. She removed
the towel gagged in her mouth and started shouting loudly. The
petitioner left her or hearing her hulla and went away through the
jungle. Then she started crying and saw two women standing
nearby Sita Udabar and Prema Majhi (P.W.3) and narrated the
entire incident to them. Thereafter she returned to home. After
returning home, she also narrated the entire story before her sister-
in-law P.W.4 and brother-in-law. There was bleeding from her
mouth.
P.W.1-Kanchana Pradhan, P.W.3- Prema Majhi and
P.W.4-Jyotimanjari Pradhan are the post occurrence witnesses
before whom the victim narrated the occurrence. P.W. 1 did not
support the prosecution case and hence was declared hostile.
P.W.3- Prema Majhi is also a post occurrence witness.
She has stated that she knows the victim as well as the petitioner-
Niranjan Swain. She has stated that while she was uprooting grass
in her land, she saw the victim (P.W.2) was coming crying from
her land. The informant, victim disclosed before her that the
petitioner gagged the towel on her mouth and attempted to commit
rape on her and she also saw bleeding from the mouth of P.W.2.
Then the victim went on her way and she came back to her home.
P.W.4- Jyotimanjari Pradhan has stated that the victim is
her sister-in-law. When she came out from her home at 8.00 A.M.
morning on the date of occurrence, she saw the victim was coming
crying to home and when she asked her, the victim disclosed
before her that the petitioner was attempting to commit rape on her.
P.W.5-Santosh Sahu and P.W.6-Gagan Kisan are
witnesses to seizure of red colour sari, maroon colour blouse and
gray colour saya from the victim (P.W.2) vide M.Os. I, II and III
respectively.
P.W.7- Dr. Purna Chandra Pradhan is the Medical
Officer of P.H.C., Chhatabar. He examined the victim (P.W.2) and
found following injuries on her person:-
(i) Echymosis of size 3 ̎ X 2 ̎ right buttock
(ii) Abrasion of size 2 ̎ right upper lip
(iii) Abrasion of size 2 ̎ right lower lip
He has stated that all the injuries are simple in nature and
might have been caused by blunt weapon. The age of injury is
more than 12 hours at the time of his examination. Ext.3 is his
report and Ext.3/1 is his signature.
P.W.8-Benudhar Bhoi is the Investigating Officer. He
has stated that on the report of the victim (P.W.2), he registered the
case against the petitioner under Sections 376/511 of IPC and took
up investigation. During course of investigation, he seized M.Os.
I, II and III and prepared seizure list as Ext.2 and arrested and
forwarded the petitioner to Court and sent the P.W.2 to P.W.7 for
medical examination and on completion of investigation he
submits that charge sheet against the petitioner under Sections 376/
511 of the IPC for attempting commit rape on victim (P.W.2).
D.W.1-Chandal Bagh has admitted that he does not pull
on well with P.W.2.
EXHIBITS
6. The prosecution exhibited 12 exhibits. Ext.1 is the F.I.R.,
Ext.1/1 is the signature of P.W.2 on Ext.1, Ext.2 is the seizure list,
Ext.2/1 is the signature of P.W.5 on Ext.2, Ext. 2/2 is the signature
of P.W.6 on Ext.2, Ext.3 is the medical report, Ext.3/1 is the
signature of P.W.7 on Ext.1, Ext.1/2 is the signature and
endorsement of P.W.8, Ext.3/2 is the signature and endorsement of
P.W.8, Ext.4 is the spot map, Ext.4/1 is the signature of P.W.8 on
Ext.4 and Ext. 2/3 is the signature of P.W.8 on Ext.2.
JUDGMENT OF THE LEARNED TRIAL COURT
7. The learned Trial Court vide impugned judgment and
order dated 28.01.2006 found the petitioner guilty of the offence
under Section 354 of IPC instead of Section 376/511 of IPC and
sentenced him to undergo R.I. for one year and directed that the
period under gone as U.T.P. be set off. The learned trial court has
stated that as these types of crimes are rising every day, it would be
proper to impose substantive sentence and not only fine. It also
declined to extend the benefit of the probation of the Offender Act
to the petitioner
JUDGMENT OF THE LEARNED APPELLATE COURT
8. On 09.11.2006, the learned Additional Sessions Judge,
Deogarh dismissed Criminal Appeal No.04 of 2006 filed by the
petitioner challenging his conviction and sentence and upheld the
impugned judgment and order of the learned trial court. It rejected
the plea of the petitioner that charge has been altered without
hearing him, holding that the charge had not been altered but the
learned trial court found that the prosecution had been able to
prove the offence under Section 354 of IPC against the petitioner.
SUBMISSION
9. Mr. S. Panda, learned counsel appearing on behalf of Mr.
D. Panda, learned counsel for the petitioner has submitted that
P.W. 5 has stated in his statement that seizure was made after 5-6
days after the occurrence and he has also stated in cross-
examination that the I.O. did not explain to him as to what for the
M.Os. I, II, III were seized and P.W.5 has further stated that the
seizure list Ext.2 was prepared by the I.O. in front of his house at
village whereas P.W. 6 has stated in his cross-examination that
M.Os. I, II, III were seized at the house of the informant-victim
after 4 to 5 days of the occurrence by the I.O.(P.W.8). He has
submitted that both the courts below erred in law in convicting and
sentencing the petitioner by placing reliance merely on surmises
and conjunctures without any legal evidence available on record to
prove the prosecution case and a bar perusal of the evidence of
P.W.2 would disclose absence of any of the ingredients to make
out a prima facie case under Section 354 of IPC to convict the
petitioner. P.W.2 in her evidence has not stated that her modesty
was outraged, hence the petitioner's conviction under Section 354
of IPC cannot be said to have been established by the prosecution.
He has submitted P.W.2 have nowhere stated in her evidence about
any indecent exposure of her person of her modesty being
outraged. So the petitioner's conviction under Section 354 of IPC
is not sustainable in the eye of law. The learned lower appellate
court has mechanically confirmed the conviction recorded by the
learned trial court without appreciating the inherent defects in the
trial court's judgment. He has further submitted that the learned
lower appellate court having failed to reappraise the evidence on
record from its correct legal perspective, the findings of the said
court are not sustainable in the eye of law. He has also submitted
that in the absence of charge framed under Section 354 of IPC, the
petitioner could not have been convicted thereunder. He further
submits that the so-called seizure of every appeal which has been
held by both the courts to be corroborative of the prosecution
evidence does not in any way improve the case of the prosecution.
Non-seizure of the towel with which P.W.2 was allegedly gagged
casts doubts on the truth of the prosecution story. Mr. Panda,
learned counsel has also submitted that the sentence is also liable
for interference since no reasons have been given as to why a
sentence of fine instead of simple imprisonment was not imposed.
10. Ms. S. Mishra, learned Addl. Standing Counsel for the
State has submitted that nothing in favour of the defence has been
elicited from the mouth of P.W.3 and 4 during cross-examination.
She has submitted that P.W.7 who is the Medical Officer of PHC,
Chhatabar examined the victim and found 3 injuries on her person.
In cross examination he has stated that the injuries on upper lip and
lower are possible by assault. The injury no.1 may be caused by
fall in hard and rough surface. In view of the provision under
Section 215 of the Cr.P.C., no prejudice has been caused to the
petitioner. It is settled position of law, that the sole evidence of the
victim is enough, as such crimes are usually committed when the
victim is alone.
STATUTORY PROVISIONS
11. Section 215 of Cr.P.C. is extracted below:
"No error in stating either the offence or the particulars
required to be stated in the charge, and no omission to
state the offence or those particulars, shall be regarded
at any stage of the case as material, unless the accused
was in fact misled by such error or omission, and it has
occasioned a failure of justice."
12. Section 354 of the IPC is extracted below:
"354. Assault or criminal force to woman with intent
to outrage her modesty--
Whoever assaults or uses criminal force to any woman,
intending to outrage or knowing it to be likely that he
will thereby outrage her modesty, shall be punished with
imprisonment of either description for a term which shall
not be less than one year but which may extend to five
years, and shall also be liable to fine."
JUDICIAL PRONOUNCEMENTS
13. The Supreme Court, in the case of Shamnsaheb M.
Multtani v. State of Karnataka, (2001) 2 SCC 577, has held that
when an accused is charged with a major offence and if the
ingredients of major offence are not proved, the accused can be
convicted for minor offence, if its ingredients of this offence have
been proved.
In the case of State of Punjab v. Major Singh: 1966
SCR (2) 286: AIR 1967 SC 63, the Supreme Court was
considering the question whether modesty of a female child of 7
months can be outraged. The majority view was in affirmative.
Justice Bachawat, on behalf of majority, opined as under:
"The offence punishable under section 354 is an
assault on or use of criminal force to a woman the
intention of outraging her modesty or with the knowledge
of the likelihood of doing so. The Code does not define,
"modesty". What then is a woman's modesty?
The essence of a woman's modesty is her sex. The
modesty of an adult female is writ large on her body.
Young or old intelligent or imbecile, awake or sleeping,
the woman possesses a modesty capable of being
outraged. Whoever uses criminal force to her with intent
to outrage her modesty commits an offence punishable
under Section 354. The culpable intention of the accused
is the crux of the matter. The reaction of the woman is
very relevant, but its absence is not always decisive, as
for example, when the accused with a corrupt mind
stealthily touches the flesh of a sleeping woman. She may
be an idiot, she may be under the spell of anaesthesia,
she may be sleeping, she may be unable to appreciate the
significance of the act, nevertheless, the offender is
punishable under the section."
This court in the case of Keshab Padhan v. State of
Orissa: 1976 Cutt LR (Cri) 236 has held as follows:
"The test of outrage of modesty is whether a
reasonable man will think that the act of the offender
was intended to or was known to be likely to outrage the
modesty of the woman. In the instant case, the girl was
15 years of age and in the midnight while she was
coming back with her mother the sudden appearance of
the petitioner from a Patna High Court CR. APP (SJ)
No.153 of 2008 dt.29-04-2025 25/28 lane and dragging
her towards that side sufficiently established the
ingredients of Section 354."
In Kanhu Charan Patra v. State, this Court has held as
under:
"The accused entered the house and broke open the
door which two girls of growing age had closed from
inside and molested them but they could do nothing more
as the girls made good their escape. On being
prosecuted it was held that the act of accused was of
grave nature and they had committed the same in a dare
devil manner. As such, their conviction u/s 354/34 was
held proper."
ANALYSIS AND CONCLUSION
14. Section 354 of IPC is a lesser offence than Section 376/511
of IPC.
15. The prosecution has been able to prove that the petitioner
had pushed the victim on the ground, gagged her mouth with a
napkin and tried to disrobe her. At this juncture, she raised hullah
and he ran away. So an offence under Sections 376/511 of IPC is
not made out. But the evidence is sufficient to prove that the
modesty of the victim had been outraged. The medical evidence
corroborates the evidence of P.W.2 the victim as P.W.7, the doctor
who examined her found injury on her lips and buttock. So the
evidence on record makes out an offence under Section 354 I.P.C
against the petitioner.
16. I therefore find no reason to interfere with the judgments of
the learned trial Court or appellate court. The conviction of the
petitioner under Section 354 IPC is therefore confirmed.
17. As far as the sentence is concerned, as more than 23 years
have elapsed since the date of occurrence and the petitioner who
was aged about 42 years in 2006, will be more than sixty years
now, I am of the view that the substantive sentence should be
modified.
18. Instead of sentence of one year R.I., the petitioner is
sentenced to undergo three months R.I. and pay a fine of
Rs.1,000/-, in default to undergo R.I. for one more month.
19. The Criminal Revision is dismissed with the above
modification in sentence.
...........................
(Savitri Ratho, J.)
Orissa High Court, Cuttack.
The 30th May, 2025.
Puspa, Personal Assistant.
Signed by: PUSPANJALI MOHAPATRA
Designation: Personal Assistant
Reason: Authentication
Location: Orissa High Court
Date: 01-Jun-2025 20:01:49
