Orissa High Court
Hemnata @ Nabin Meher & vs Sstate Of Odisha .... Opposite Party on 12 November, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.319 of 2025
Hemnata @ Nabin Meher & .... Petitioners
another
Mr. Trilochan Nanda, Advocate
-Versus-
SState of Odisha .... Opposite Party
Mr. Sanjib Swain, AGA
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF HEARING: 13.08.2025
DATE OF JUDGMENT: 12.11.2025
1.
Instant revision is filed by the petitioners assailing the
impugned judgment dated 27th March, 2025 passed in
connection with Criminal Appeal No.10 of 2024 by the
learned Additional Sessions Judge, Kantabanji confirming the
order of conviction and sentence dated 23rd November, 2024
of the learned Assistant Sessions Judge, Kantabanji in S.C.
Case No.83/37 of 2013 on the grounds inter alia that the same
are liable to be interfered with and set aside.
2. The petitioners faced trial in S.C. Case No.83/37 of 2013
for the offences under Sections 452,341,354 and 506 read
with 34 IPC combinedly and in addition, petitioner No.1
under Sections 366 and 376 IPC. The prosecution case in
brief is that the alleged occurrence took place on 1st June,
2012, during and in course of which, the petitioners entered
inside the house of the informant and one of them, namely,
petitioner No.1 threatened the victim with a knife and
thereafter, the other events followed. It has also been alleged
against petitioner No.1 that he threatened the informant and
others, if she did not marry him. In course of investigation,
the previous incident, which had happened with the
informant, was revealed and according to the prosecution, it
took place on 27th April, 2012 at about 5 P.M., when
petitioner No.1 asked the informant over phone to marry him
and on her denial, she was threatened and thereafter, under
threat and compulsion, accompanied him to Puri. It is further
alleged that during such time, while staying together,
petitioner No.1 committed other mischief by having physical
relationship with the informant and also threatened her to
upload the naked photographs of their intimate moments in
social media and finally, on 29th April, 2012, she returned to
home. After the above incidents having taken place with the
involvement of petitioner No.1, the subsequent event took
place on 1st June, 2012, whereafter, the report was lodged at
the PS. Upon registration of Bangomunda P.S. Case No.45
dated 1st June, 2012 for the alleged offences, the investigation
was conducted and ultimately, the chargesheet was filed
against the petitioners to stand their trial in the Court of law.
After commitment of the case, the petitioners when pleaded
not guilty, the trial began and ultimately, it led to the passing
of the impugned order of conviction and sentence. At the end
of the trial, the petitioners were found not guilty for the
offence under Section 354 read with Section 34 IPC and at
the same time, petitioner No.1 for the offences under Sections
366 and 376 read with Section 34 IPC. However, both were
convicted under Sections 452,341,352 and 506 read with 34
IPC and sentenced to undergo S.I. for one year each for the
offence under Section 354 read with Section 34 IPC and to
pay a fine of Rs.1000/- each with default sentence; S.I. for
one month each for the offences under Sections 341 and 352
read with 34 IPC; and S.I. for six months each for the offence
punishable under Section 506(part-1) read with Section 34
IPC with all such sentences to run concurrently with their
period of detention being set off.
3. With the petitioners convicted for the alleged offences,
the decision of the learned Assistant Sessions Judge,
Kantabanji in S.C. Case No.83/37 of 2013 was challenged in
appeal, which has been allowed partly with the sentences
reduced to the period already undergone. The judgment of the
learned Additional Sessions Judge, Kantabanji at Annexure-2
in Criminal Appeal No.10 of 2024 has been challenged by the
petitioners on the ground that the same is not tenable in law.
4. The grounds of challenge against the order of conviction
and sentence modified by the learned Court below are as to
the following:
(i) the judgment of learned Courts below with the
order of conviction and sentences are against the
weight of evidence on record;
(ii) discrepancy in the evidence of the victim,
namely, P.W.9 revealed during her cross-
examination that she lodged the FIR at around 11
to 12 'O' clock but the report was lodged at 6.00
P.M. and that apart, no neighbours have been
examined by the prosecution, whom she claimed
to have witnessed the alleged incident;
(iii) no charge under Section 352 IPC was framed,
hence, the order of conviction for the said offence
is legally untenable;
(iv) the delay in lodging of the FIR has not been
properly explained by the prosecution;
(v) the victim and petitioner No.1 were in a
consensual relationship, hence, the allegation is
outrightly false;
(vi) the alleged occurrence took place more than
12 to 13 years back from the date of order of
conviction and the petitioners stood acquitted for
other offences, hence, such order of conviction is
not sustainable in law;
(vii) several contradictions in the evidence of the
prosecution witnesses, whereas, the learned
Courts below heavily relied on the evidence of the
interested witnesses;
(viii) the essential ingredients of the offences
alleged against the petitioners have not been
proved and established and that apart, there is no
independent corroboration with regard to the
forced entry or attempt to abduct the victim,
thereby, making the entire story of the prosecution
doubtful and untrustworthy; and
(ix) the case is an outcome of personal animosity
between the parties, hence, the petitioners have
been falsely implicated with an ulterior motive
with highly exaggerated and false allegations.
With the above grounds pleaded, the petitioners demand
an order of acquittal.
5. Heard Mr. Nanda, learned counsel for the petitioners and
Mr. Swain, learned AGA for the State.
6. Recorded the submissions of learned counsel for the
respective parties.
7. For the alleged offences, in respect of which, the
petitioners were convicted after trial, the sentences, however,
stood modified by the impugned judgment at Annexure-2 in
Criminal Appeal No.10 of 2024. For the offence of rape,
petitioner No.1 was acquitted and it has been the view of the
learned Courts below that the allegations were not established
as the relationship between him and the victim proved to be a
consensual one and the other mischief committed on 1 st June,
2012 by the petitioners has been established leading to the
order of conviction and sentence. The learned Court below,
after a hearing on the question of sentence, directed the
petitioners to undergo sentences with a maximum
imprisonment of one year S.I. for the offence under Section
452 read with 34 IPC besides fine. The learned Assistant
Sessions Judge, Kantabanji formulated the points for
determination regarding the trespass by the petitioners into
the house of the victim informant and committing other
mischief for wrongful restraining her and other family
members and using criminal force with an intention to abduct
and to compel her to marry petitioner No.1.
8. The allegations for the offences under Sections 366 and
376 IPC could not be substantiated by the prosecution. The
order of acquittal for the said offences has not been
challenged by the State or the victim, as informed to the
Court. The conviction and sentences directed against the
petitioners for the other offences were challenged in appeal
but with confirmation of the conviction, the sentences stood
modified.
9. During trial, the prosecution examined the victim as P.W.9
and fourteen other witnesses including the I.O. The mother of
the informant was examined as P.W.2 and according to her,
the petitioners committed the mischief during the alleged
incident involving P.W.9. The victim, namely, P.W.9.
herself, deposed during trial supporting the prosecution case
regarding the incident dated 1st June, 2012 and the earlier
events with the involvement of petitioner No.1. The other
witnesses including the I.O. examined as P.W.15 deposed
before the learned Trial Court with respect to the incidents
dated 28th April, 2012 and 1st June, 2012.
10. According to Mr. Nanda, learned counsel for the
petitioners, firstly, there has been delay in lodging of the FIR
and it has not been duly explained. From the record, it reveals
that the report was lodged at 6.00 PM, but according to the
informant, namely, P.W.9, she had lodged it between 11 to 12
'O' clock. The contention of Mr. Nanda, learned counsel is
that such discrepancy in the evidence of P.W.9 is fatal to the
case of the prosecution. Mr. Swain, learned AGA for the
State, on the other hand, submits that the evidence of P.W.9
is to be appreciated considering the fact that she is the victim
and that apart, any such evidence is not a contradiction but a
discrepancy, which is to be ignored. The time of lodging of
FIR mentioned therein as against the evidence of P.W.9, even
if found to be not consistent, according to the Court, too
much of importance should not be given to it. Such difference
as to the time conceived by one in lodging of the report does
normally happen in such situations. It could be that P.W.9
had been to the PS to report the incident and was there in the
afternoon, hence, she could be of the impression about the
FIR being lodged during that time. Such discrepancy is not a
serious ground to be taken judicial notice of and rightly,
therefore, both the learned Courts below did not attach any
such importance to the evidence of P.W.9 with reference to
the F.I.R.
11. As regards, the evidence of the interested witnesses, the
contention of Mr. Nanda, learned counsel for the petitioners
is that the prosecution case is not to be easily trusted but the
same is challenged by the State on the ground that there is
material on record to make one believe about the alleged
incident dated 1st June, 2012. Law is well settled that the
evidence of the interested witnesses is not to be rejected
outrightly even in absence of independent corroboration, if
the same is found to be otherwise acceptable and trustworthy.
At times and normally, it has been experienced that the
neighbours or outsiders, who are uninterested, despite having
witnessed the incident taking place do not come forward or
even if examined, turn hostile not supporting the prosecution
during trial. But, under such circumstances, a Court is to
consider and independently examine the evidence of the
victim and other witnesses and to arrive at a conclusion,
whether, the same should be accepted. But, merely for the
reason that the interested witnesses have not been examined,
hence, there is no corroboration, in the humble view of the
Court, on such ground, the prosecution story is not to be
discarded as it could lead to miscarriage of justice.
12. In the case at hand, according to the petitioners, no
neighbours have been examined from the side of the
prosecution, even when, P.W.9 claimed them to have
witnessed the incident dated 1st June, 2012. Non-examination
of any such neighbours of P.W.9 should not be a ground to
reject the prosecution case. It cannot be said that the genesis
of the incident has been suppressed without the real version
being presented after having considered the entire evidence.
So, the conclusion of the Court is that on any such ground,
the testimony of P.W.9 is not to be disbelieved.
13. The delay in lodging the FIR is claimed not to have been
properly explained by the prosecution. In a case of present
nature, at times, delay happens especially when the honour
and reputation of a family is at stake as herein the informant
victim was subjected to harassment in the hands of petitioner
No.1 at the relevant point of time as she was coerced and
intimidated to marry him. In such a situation, it is quite but
natural to report the incident with some amount of delay and
therefore, in the case at hand, lodging of the FIR with any
such delay is well understood and it needs no explanation
from the prosecution.
14. The other ground is that P.W.9 has had a consensual
relationship with petitioner No.1 for having accompanied the
latter to Puri, where both of them stayed in a hotel and when
it has been accepted by the learned Courts below, both the
petitioners could not have convicted for other offences as the
allegation of rape was found to be false. The Court is unable
to accept such an argument of Mr. Nanda, learned counsel for
the petitioners for the reason that even though the earlier
incident alleging kidnapping and rape was not believed, the
occurrence dated 1st June, 2012 was fully established. A part
of the prosecution case, if proved, which relates to an
incident and that can be segregated from the rest, it can be
believed and be the basis of conviction. The incident dated
28th April, 2012 may not have been proved as for an offence
under Section 376 IPC was not made out nor a case of
kidnapping on the premise that the parties had been in a
relationship by then, hence, to be consensual but that by
itself, does not make the incident dated 1st June, 2012
suspect.
15. The Court below has applied the principle of 'falsus in
uno, falsus in omnibus' by concluding that a part of the
testimony of a witness should not be discarded simply
because the remainder was found to be false. Even, if the
evidence of P.W.9 was not believed for the alleged offences
of rape and kidnapping, which is in relation to another
incident that had taken place on 28th April, 2012, for that, the
occurrence dated 1st June, 2012 should not be doubted. Both
are separate incidents and if one is disbelieved, the other one
is not to be rejected automatically. So, the testimony of
P.W.9 is not to be distrusted for the incident dated 1st June,
2012, as it has been fully corroborated by P.W.2 and others.
According to the Court, the entire evidence is to be examined
either with or without corroboration. A Court should be
considering the truthfulness or otherwise of the allegations
made and sought to be proved by the prosecution. Absence of
independent corroboration is not always fatal and a ground to
reject the case of the prosecution in its entirety. When there is
evidence for the incident dated 1st June, 2012 and it is proved
with the evidence of P.W.9 and other material witnesses, who
are related to her and in whose presence, the same had taken
place with the involvement of the petitioners, the Court has
no reason to disbelieve and to conclude that the learned
Courts below rightly rejected such defence.
16. As far as offence under Section 352 IPC is concerned,
according to Mr. Nanda, learned counsel for the petitioners,
the learned Trial Court never framed charge for it, hence, the
order of conviction for the said offence is not sustainable in
law. The offence alleged against the petitioners punishable
under Section 352 IPC relates to use of criminal force or
assault otherwise than on provocation. Admittedly, there has
been no charge for the offence under Section 352 IPC. But,
according to the Court, the contention of Mr. Nanda, learned
counsel is misconceived while claiming that conviction order
under Section 352 IPC is not legally sustainable without a
charge being framed. According to the Court, even in absence
of charge in place, there can be conviction for a particular
offence, when no prejudice has occasioned to the defence
with the evidence on record. If an accused is well aware of
the nature of allegation made and the evidence was adduced,
as in the case herein, absence of a charge framed for an
offence under Section 352 IPC is inconsequential. It is not
that the defence was put to surprise with the conviction under
Section 352 IPC, as it was fully conscious of the evidence of
the prosecution to the effect that the petitioners forcibly made
their entry into the house of the informant and used the
criminal force, while committing other mischief. Absence of
a charge framed or any such additional charge brought on to
record during trial, a Court could consider convicting an
accused for a particular offence, when there has been
evidence received from both the sides and it was well within
the knowledge of the defence. In the case of the petitioners, it
is not that both of them were not aware of the allegation
regarding use of criminal force in the FIR and also during
trial, with evidence being adduced by the prosecution and
therefore, to claim that the conviction for an offence under
Section 352 IPC cannot be sustained is unacceptable and
rightly, therefore, in the considered view of the Court, there
has been conviction under Section 352 IPC even in absence
of charge framed by the learned Trial Court. That apart, the
petitioners faced trial for a charge under Section 354 IPC
allegedly for having outraged modesty of the informant but
considering the evidence on record, the learned Trial Court
was satisfied that an offence of use of criminal force
simplicitor was proved and established, hence, convicted
them thereunder, which, in the humble view of the Court, is
perfectly justified and permissible under law.
17. When the alleged incident dated 1st June, 2012 is
established with all such evidence received from the
prosecution and as the testimony of P.W.9, who is the victim,
is supported by others, taking into account, the entire
evidence including P.W.14, namely, I.O., the inescapable
conclusion of the Court is that there is no any error or
illegality committed by the learned Courts below while
passing the order of conviction and finally, in appeal,
directing the sentences reduced for the period already
undergone, while disposing of the appeal, having regard to
the fact that the petitioners remained in judicial custody for
some time as UTPs and perhaps for the reason that the
alleged incident was more than a decade old by then. In other
words, the learned Court below considering the entirety of
the evidence, nature of offences alleged and the kind of
mischief committed by the petitioners, rightly, upheld the
order of conviction and modified the sentences. Having said
that, the final conclusion of the Court is that the impugned
judgment as at Annexure-2 does not suffer from any legal
infirmity and thus, calls for no interference and accordingly,
it is ordered.
18. In the result, the revision petition stands dismissed. As a
necessary corollary, impugned judgment dated 27th March,
2025 passed in connection with Criminal Appeal No.10 of
2024 by the learned Additional Sessions Judge, Kantabanji is
hereby affirmed for the reasons discussed hereinbefore.
(R.K. Pattanaik)
Judge
Alok
