Orissa High Court

Bira Uttansingh vs State Of Orissa on 25 September, 2025

         THE HIGH COURT OF ORISSA AT CUTTACK

                          CRA No.153 of 2000

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


Bira Uttansingh                         .......                  Appellant

                                 -Versus-

State of Orissa                         .......              Respondent

For the Appellant : Mr. Debi Prasad Dhal, Senior Advocate

For the Respondent : Mr. Ashok Kumar Apat, AGA

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 09.09.2025 :: Date of Judgment:25.09.2025

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

Bira Uttansingh under Sections 374(2) of the Cr.P.C., is directed against

the judgment and order dated 01.06.2000 passed by the learned Assistant

Sessions Judge, Balliguda in S.T. No.81 of 1999/S.T. No.85 of

1999(D.C.), whereby the present appellant has been convicted for the offence under Section 376(2) (f) of the I.P.C. and on that count, he was

sentenced to undergo R.I. for ten years.

2. Heard Mr. Debi Prasad Dhal, learned Senior Counsel for the

appellant and Mr. Ashok Kumar Apat, learned Additional Government

Advocate for the State.

3. The case of the prosecution, briefly stated, is that on 30.03.1999,

the victim (P.W.5), a minor girl aged about six years, had gone to a

mango grove to collect mangoes along with another girl between 12.00

noon and 2.00 P.M. At about 2.00 P.M., she returned home crying and

informed her mother that while she was collecting mangoes, the

accused-appellant approached her, offered her a raw-mango, and asked

her to accompany him to a nearby spring (Chua) for bathing. On her

refusal, stating that she had already taken her bath, the accused forcibly

dragged her to a place locally known as 'Nuakiari Dhipa' of the village,

removed her Chadi (panty) and made her lie on the ground and

committed rape on her. Unable to bear the pain, the minor girl cried

loudly, whereupon the accused threatened her with dire consequences,

stating that he would stab her if she disclosed the incident to anyone.

After committing the act for some time, the accused left the place. The

girl came back home after collecting and wearing her panty crying and

reported about the matter to her mother. The mother of the victim, being

afraid by the incident, examined her daughter and noticed swelling in her

private part, while her undergarment was found to be wet with semen.

Since the father of the victim was not present at home, the matter was

immediately reported to the child's grandfather and paternal uncle. On

the following day, the informant lodged the F.I.R., pursuant to which

investigation was taken up. During investigation, both the victim girl and

the accused were medically examined, their wearing apparels were

seized, and upon completion of investigation, charge-sheet was

submitted against the accused under Sections 376(2)(f) and 506 of the

Indian Penal Code. On denial of the charges the accused-appellant faced

trial.

4. The prosecution in order to prove its case examined as many as

seven witnesses. Out of whom, P.W.4 was the informant (Mother of the

victim), P.W.1 is her brother in law, P.W.2 was the doctor who collected

the sample blood of the accused, P.W.3 was the then O.I.C., Kotagarh

P.S., who took charge of investigation of this case from A.S.I., N. Sahu

and has done major part of the investigation, P.W.5 is the victim girl,

P.W.6 was the then A.S.I. of Kotagarh P.S. who registered the case in

absence of the O.I.C., taken one part of the investigation of the case and

on subsequent arrival of the O.I.C.(P.W.3) handed over the charge to

P.W.3. P.W.7 was the then Sub-Divisional Medical Officer, Balliguda

who has proved the medical report prepared by one Dr. B. Subudhi, who

died during pendency of the case

5. The learned trial Court has analysed all the evidence on record,

subsequently in Para 10 of the impugned Judgement, the learned court

looked upon the testimony of the victim, which is relevant to be

reproduced herein for the convenience of ready reference: -

"10. PW5 is the victim girl who is aged about 7 years. As she could not give rational answers to the questions put to her, oath was not administered to her, She states that, she knows the accused whom she addresses as uncle (Mamu). According to her, on the date of occurrence she and Bhaktimala had been to mango grove to collect mango.

At that time, accused (Bira Mamu) came near her and gave her a mango. Thereafter the accused called her to go with him to a nearby spring (Chua) for bathing and when she denied, the accused forcibly dragged her to Nuakiari, removed. her wearing Chadi, pushed her penis into her private part and committed rape on her as a result of which, she sustained pain and injury. She says that, due to rape committed on her, there was profuse bleeding from her private part. Her evidence is that, the accused left her alone and went away whereafter with much difficulty. She returned home and told her mother that accused Bira Mamu forcibly dragged her to Nuakiari Dhipo, removed her wearing apparrel(Chadi) and forcibly committed rape on her. She further states that, after she narrated the incident before her mother, her mother verified the Chadi and her private part. In the cross-examination she says that accused had penetrated his penis into her private part for which her vagina was raptured a slightly. She has also denied the suggestion that there was no such occurrence ."

6. Subsequently, upon analysis of evidence, precedents and law the

learned Court below have arrived at the following conclusion:

"20. In view of my aforesaid discussions I am of the opinion that prosecution has been able to bring home the charge under section 376(2) (f) of the I.P.C. against the accused beyond all reasonable doubt but not for the other offence. Therefore, while acquitting him of the offence

under section 506 of the I.P.C. in terms of section 235 (1) of the CrPC., I find him guilty for the offence under section 376(2) (f) of the I.P.C. and convict him thereunder."

7. Being aggrieved by the judgment of conviction and order of

sentence passed by the learned Assistant Sessions Judge, Balliguda, the

present appeal has been preferred by the appellant.

8. Mr. Dhal, learned Senior Counsel appearing for the appellant, at

the very outset submitted that he would confine his arguments only with

regard to the period of sentence already undergone by the appellant. It is

submitted that the appellant has already undergone the substantive

sentence imposed upon him by the learned court below, and as such,

nothing further survives to be urged on the merits of the case. The appeal

was heard on 21.08.2025 and it was submitted that the appeal was filed

from custody and the appellant was never granted bail, in that view this

court passed the following Order:

"1. Learned counsel for the appellant submits that the appellant has been convicted for the offence punishable under Section 376(2)(f) of the IPC and sentenced to undergo R.I. for ten years. He further submits that after the appellant was

taken into custody, he has filed this Criminal Appeal which is apparent from the Vakalatnama filed in this case, which has been attested by the jail authority. He further submits that the appellant has not been granted bail.

2. In that circumstance, since this Criminal Appeal is pending from 2000 and the appellant has undergone ten years of sentence, learned counsel for the State is directed to obtain instruction from the Superintendent, Sub-Jail, Baliguda, Kandhamal."

Pursuant to the order dated 21.08.2025, the Senior Superintendent

of Circle Jail placed on record the report, which is reproduced herein

under:

"With reference to the letter cited above on the subject, I am to inform you that, on verification of records, it is found that, the convict No.6044/A Bira Uttansingh S/o Binu Uttansingh of Vill- Tikatigaon, P.S. Kotagath, Dist- Kandhamal has been released on 01.04.2009 from Jail custody after expiry of his sentence."

The same is reflected in the Order dated 02.09.2025 of this Court,

which is reproduced herein under:

"1. Pursuance to the order dated 21.08.2025, learned counsel for the State has produced the written instruction received from the Senior

Superintendent, Circle Jail, Phulbani dated 27.08.2025, which indicates that the sole appellant-Bira Uttansingh son of Binu Uttansingh has already been released on 01.04.2009 from jail custody after expiry of his sentence period. The written instruction is taken on record."

The aforesaid submission and proceeding thereon has not been

controverted by the learned Additional Government Advocate appearing

for the State.

9. In view of the aforesaid, as the appellant has already undergone

the sentence awarded to him, this Court finds no reason to enter into the

merits of the matter afresh. The judgment of conviction recorded by the

learned trial Court is accordingly upheld.

10. Consequently, and as nothing further survives for adjudication, the

present Criminal Appeal stands dismissed.

(S.S. Mishra) Judge

The High Court of Orissa, Cuttack.

Dated the 25 of September, 2025/ Swarna