Jagannath Dakua vs Sstate Of Odisha .... Opposite Party on 16 January, 2026

Author: R.K. Pattanaik

Bench: R.K. Pattanaik

         IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR                       CRLREV No.271 of 2025

       Jagannath Dakua                       ....          Petitioner
                                       Mr. Sarthak Mishra, Advocate


                                   -Versus-

      SState of Odisha                       ....     Opposite Party
                                        Mr. Prabir Kumar Ray, AGA

                 CORAM:
                 JUSTICE R.K. PATTANAIK
                 DATE OF HEARING: 23.10.2025
                 DATE OF JUDGMENT:16.01.2026


      1.

Instant revision under Section 401 read with Section 397 of the Code Criminal Procedure, 1973 is filed by the petitioner assailing the correctness, legality and judicial propriety of the impugned judgment dated 27 th November, 2007 passed in connection with Criminal Appeal No.41 of 2002 by the learned Additional Sessions Judge, Bhanjanagar, Ganjam confirming the order of conviction and sentence dated 13th September, 2002 directed in Sessions Case No.9 of 2000 by the learned Assistant Sessions Judge, Bhanjanagar on the grounds inter alia that such decision convicting him for an offence punishable under Section 376 IPC is legally not tenable and hence, the same is liable to be interfered with and set aside with in the interest of justice.

2. According to the prosecution case, the alleged incident took place on 21st June, 1999 at a time when the victim, who

had been to a nearby jungle for collection of mushroom, was picked-up by the petitioner and was subjected to rape. In connection with the alleged incident, a report was lodged at the local PS. The said report was lodged on 22nd June, 1999. Subsequent to the FIR lodged, Bhanjanagar PS Case No.112 (14) dated 22nd June, 1999 was registered under Section 376 IPC. The investigation was commenced whereafter chargesheet was filed under the alleged offence against the petitioner in the month of October, 1999. In course of trial, the prosecution examined six witnesses and exhibited fourteen documents in support of its case, whereas, the petitioner examined three witnesses in order to defend the charge levelled against him. Considering the evidence of both the sides, the learned Assistant Sessions Judge, Bhanjanagar convicted the petitioner for the offence punishable under Section 376 IPC and directed him to undergo RI for seven years and to pay a fine of Rs.5,000/- with default sentence and also compensation of Rs.5,000/- to the victim in terms of Section 357 Cr.P.C. with the detention period being set-off under Section 428 Cr.P.C. Against the order of conviction and sentence, the petitioner filed the appeal before the learned court below, however, the same was dismissed accepting the prosecution case and also the view expressed by the learned Trial Court. Against the order of dismissal in the appeal, the petitioner has approached this Court with the present revision on the following grounds, such as, (a) the impugned judgment dated 13th September, 2002 by the learned court below is illegal, arbitrary and against the weight of evidence and also devoid of merit, hence, the same

is liable to be set aside; (b) the learned Trial Court failed to appreciate the delay in lodging of the FIR which creates a serious doubt about the alleged incident and also the credibility of the prosecution case; (c) there has been no independent corroboration to the sexual assault by the petitioner as all other material witnesses belong to the family of the victim and are highly interested witnesses; (e) the learned Trial Court erred in convicting the petitioner on the basis of the evidence of such interested witnesses without independent corroboration not even supported by medical evidence, hence, the decision is not sustainable in the eye of law; (f) the fundamental principle of criminal jurisprudence while dealing with a prosecution has been completely lost sight by the learned Trial Court as a case is required to be proved beyond reasonable doubt and herein, the petitioner should have been given a benefit of doubt considering the nature of offence; (g) the learned court below disregarded the fact that there is lack of independent corroboration and that apart, inconsistency in the prosecution case with selective reading of the evidence and the fact that the prosecution has not discharged its responsibility and burden of proof necessary for recording conviction.

3. The defence is one of complete denial.

4. Heard Mishra, learned counsel for the petitioner and Mr. Ray, learned AGA for the State.

5. Mr. Mishra, learned counsel for the petitioner would submit that the entire narration of the prosecution case is

shrouded in serious doubt and there is error in appreciation of evidence specially ignoring the inconsistency in the evidence which goes to the root of the case warranting interference by this Court. The further submission is that the material contradiction in the testimony of the victim should have been taken judicial notice by the learned courts below particularly for non-examination of her siblings and in absence of corroboration to the alleged incident. The contention is that the learned court below should not have relied on the testimony of the victim without insisting upon independent corroboration. According to Mr. Mishra, learned counsel, the evidence of the victim alleging forcible sexual intercourse for the duration disclosed by her with other attending circumstances, the incident having taken place inside a jungle, is not worthy of credence. Apart from the above, it is contended that the medical/forensic evidence completely negated the claim of the victim, inasmuch as, the prosecution's version is riddled with material contradictions, improvements and inconsistencies and it has not been taken judicial notice of by both the courts below. The contention is that the weapon of offence used during the alleged incident was never seized by the police thereby nullifying the threat perception on the victim. Beside the above, it is contended that the victim did not have any injury on her person while it has been revealed by her that she was ravished by the petitioner on a thorny and rough surface. The chemical examination report could not establish the case either as the samples collected during investigation had already deteriorated by the by the time of such examination and

therefore, according to Mr. Mishra, learned counsel, in absence of medical evidence in support of the prosecution case and absence of injuries on the person of the victim and sign of recent forcible sexual intercourse, the learned courts below grossly erred in reaching at a conclusion that a case under Section 376 IPC is proved and established. Lastly, it is contended that the circumstances with such evidence received from the side of the prosecution is not credible and trustworthy and solely revolve around the testimony of the victim which should in inspire confidence of a Court leaving no room for suspension and the said aspect has been not taking into account by the learned courts below and hence, the order of conviction and sentence directed against the petitioner dismissing the appeal deserves to be set at naught.

6. On the contrary, Mr. Ray, learned AGA for the State submits that the prosecution has been successful in proving the case against the petitioner for an offence punishable under Section 376 IPC as the same has been supported by the victim and her family. It is contended that each and every aspect of the case has been discussed in great detail by the learned Trial Court and at last, believed the version of the victim. Mr. Ray, learned AGA for the State would submit that the learned courts below found the testimony of the victim worthy of acceptance and it has been supported by other material witnesses, who belong to her family. The submission is that conviction can be sustained in a case of present nature even on the sole testimony of a victim and it needs no corroboration. The further submission is that the

evidence of the victim with minor inconsistencies has been accepted by the learned courts below and when the law is well settled that independent corroboration is not always necessary, the learned courts below rightly concluded that the petitioner is guilty for an offence of rape. Since, the version of the victim inspired confidence of the learned Trial Court and it received corroboration from other witnesses including her parents, according to Mr. Ray, learned AGA, it could not have been held otherwise. The whole of the evidence shall have to be examined against the backdrop with the testimony of the victim who by then was aged about 16 and 17 years of old and therefore, submission of Mr. Ray, learned AGA is that the learned courts below rightly appreciated the same and believing her version convicted the petitioner for the alleged offence and hence, the impugned judgment in appeal is perfectly justified and therefore, it should not be disturbed.

7. In course of hearing, Mr. Mishra, learned counsel for the petitioner cited the following decisions, such as, State (GNCT of Delhi) Vrs. Vipin alias Lalla, 2025 SCC Online SC 78 and Manak Chand alias Mani Vrs. State of Haryana, 2023 SCC Online SC 1397 to contend that the testimony of the prosecutrix does not inspire confidence as it is full of contradictions and therefore, the petitioner should be exonerated of the charge levelled followed by an order of acquittal by this Court.

8. Perused the evidence of the victim and others. The prosecutrix was examined as P.W.1 and she narrated the alleged incident which had taken place a year and four

months before her examination during trial. According to P.W.1, she had been to the jungle in search of mushroom along with her brother and sisters and had gone in a direction where she was alone and at that point of time, the petitioner arrived from the back side and caught hold of her and committed rape on the point of a 'Kati'. The details regarding the manner in which the petitioner committed rape on P.W.1 have been deposed by her at the time of examination. It is deposed by P.W.1 that she raised alarm but was threatened by the petitioner, who was armed with the knife and therefore, could not resist the act of rape. The alleged incident took place on 21st June, 1999 and it was reported to the local police on 22nd June, 1999 and according to P.W.1, on her return to the village, she narrated everything to her parents, who went to meet the Sarpanch to inform the same and at the latter's advice, it was reported to the police. As P.W.1, the FIR was scribed by someone else and she had put her LTI thereon. The formal FIR has been proved as Ext.5 at the instance of the IO, namely, P.W.6 along with the endorsement thereon as Ext.5/1 carrying the signature of the then IIC of the PS. In cross-examination, it has been deposed by P.W.1 that she had gone in a different direction in search of mushroom and at that time, the petitioner reached at the spot and did the mischief. P.W.1 deposed that rape was committed on her by the petitioner over a thorny and rough surface. Referring to the above disclosure made by P.W.1, it is the submission of Mr. Mishra, learned counsel for the petitioner that she did not have any physical injury when medically examined and hence, the incident should not be

believed. Mr. Ray, learned AGA for the State submits that even in absence of any injury on the person of P.W.1, the Court is not to entirely disbelieve her version. According to the Court, it is not always to notice injuries on the body of the victim when she discloses that the spot was having rough surface. Even at times, it has been noticed that injuries have not been received even when a victim was ravished over a rough surface. In other words, it is not unusual to not notice any injury when the act of rape is committed over a rough surface. In the case at hand, the spot might be having a stony surface with bushes around but not necessarily P.W.1 could have received injuries for the same. When P.W.1 was alone and the petitioner arrived and picked her up and on the point of knife committed the sexual mischief, it may be that there was no struggle by her out of fear and was laid down on the surface though rough and having thorns around but in absence of injuries received as a result, the Court is of the view that on such ground, the prosecution case is not to be disbelieved and rejected. At times, even exaggerations do take place and a Court should be conscious about the same and not to attach much importance to it while appreciating the evidence of a victim of rape.

9. It has been revealed by P.W.1 during her cross- examination that the act of rape continued for about couple of hours, which according to Mr. Mishra, learned counsel for the petitioner, is quite not possible taking into account the opinion of the doctor, namely, P.W.4. It is not to be lost sight of the fact that the victim was in her early adolescence and a

village girl. It could be that P.W.1 was detained by the petitioner, who continued to commit such other mischief finally ending with the sexual intercourse spreading over a period of couple of hours and therefore, to claim that, it was improbable on the part of the petitioner to indulgence in an act or rape for so long with the opinion of P.W.4 on record, in the considered view of the Court, should not receive much attention. In State of Himachal Pradesh Vrs. Gian Chand, (2001) 6 SCC 71, it has been held by the Apex Court that the evidence of the prosecutrix should inspire confidence and should be relied on without seeking corroboration in material particulars and if for some reason, the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend to such evidence short of corroboration as required in the case of an accomplice. It has also been held therein that the testimony of a victim must be appreciated in the background of the entire case and a Court is, therefore, to be alive to the responsibility and be sensitive, while dealing with a case of sexual mischief. In Madan Gopal Kakkad Vrs. Naval Dubey and another (1992) 3 SCC 204, it is observed by the Apex Court that lack of oral corroboration in support of the prosecutrix does not come in the way of a conviction being recorded provided her evidence suffers from no infirmity and the probability factor does not render it unworthy of credence and as a general rule, corroboration cannot be insisted upon except from medical evidence. The Court finds that P.W.1 was inside the jungle and she had not gone there alone but with her brother and sisters to collect mushroom. It is not that P.W.1 had gone to

the jungle in order to meet the petitioner. The details of the incident narrated by P.W.1 and absence of any struggle during the act of rape is the basis to claim that her evidence is not trustworthy. It should not be forgotten that P.W.1 was aged about 16 and 17 years by then and the petitioner was a young man and was armed with a knife and for that, it was quite not possible for her to physically oppose him and challenge the sexual mischief. It does appear that P.W.1 was in a helpless condition and not in a position to defend herself being alone beside the petitioner. As there being no such incident happened with P.W.1 with her consent, she would not have disclosed about the same to her parents immediately. The alleged incident took place on 21st June, 1999 and according to P.W.1, it was informed to her parents shortly after and on the next date i.e. 22nd June, 1999, the FIR was lodged. It is not that P.W. No.1 did not disclose the incident to any one and remained silent for few days. Such evidence of P.W.1 about the alleged incident is supported by P.W.2, who is her mother. According to P.W.2, her victim daughter returned home and narrated the incident of rape committed on her by the petitioner. P.W.2 further deposed that she and her husband went to the village head and told about the alleged incident. It is also informed to the Sarpanch as deposed by P.W.2 and on his advice, they reported the same to the local police. The evidence of P.W.2 received corroboration from P.W.3, who is none other than the father of P.W.1. As per P.W.3, the victim had been to jungle and returned back and informed them about the incident of rape inside the jungle and it was intimated to the village head and

also Sarpanch, who advised them to report it with the local police and accordingly, the FIR was lodged finally. Both P.Ws.2 and 3 have been cross-examined and nothing adverse has been revealed from them by the defence. If there is immediate disclosure by P.W.1 to her parents, namely, P.Ws.2 and 3 and it has also been informed to others including Sarpanch and on the latter's advice, the report was lodged at the PS, the Court is of the view that there is truthfulness in the claim of P.W.1 and therefore, her version should not be disbelieved notwithstanding any such evidence alleged to be discrepant which is really not so relevant having regard to the fact that inconsistencies do appear and it is also at times riddled with exaggeration. The testimony of P.W.1 is not to be disbelieved for the reason that the alleged incident was immediately informed by her to P.Ws.2 and 3. In fact, the defence attempted to show that the families were inimically disposed of towards each other at the relevant point of time since the marriage proposal of P.W.1 was rejected and not accepted by the family of the petitioner. Even though, the evidence of P.W.2 is not consistent with regard to the nature of relationship between the families but the claim of any such proposal of P.W.1 having been not accepted by the family of the petitioner was denied by the P.W.3. Under such circumstances, the Court is of the view that the evidence of P.W.1 having been corroborated by P.Ws.2 and 3 is acceptable. The prestige and honour of the family of P.W.1 could not have been sacrificed by alleging falsehood. At least, P.W.2 being the mother of the victim could not have allowed herself to be a party to the false

allegation of rape involving the petitioner when the reputation of the family would be at stake. As a mother P.W.2 would be the last person to bring disrepute by making false allegation or rape involving her own daughter, when the prestige of the family is involved. It is not possible to believe that P.W.1 would join with her parents to falsely allege and register a case of rape against the petitioner risking her image. It is also not really believable that the marriage proposal having not been materialized, the family of P.W.1 including herself would stoop to so low in making a false allegation against the petitioner destroying her marriage prospect. Considering the evidence of P.W.1 and corroboration received from P.Ws.2 and 3, the Court ignoring inconsistencies or exaggeration whatever is inclined to hold that their evidence is worthy of credit and not to be rejected. The Court is alive to the settled position of law that each and every inconsistency is not a contradiction though vice versa. An inconsistency in the evidence is a contradiction if it goes to the root of the case. If the surrounding circumstances with the evidence received unerringly suggests that the prosecution is able to prove the case, the Court should accept the evidence as a whole and not to reject the same.

10. The defence is also made an attempt to show that P.W.1 is accustomed to sexual intercourse and a girl of easy virtue. Such a plea of the defence was rejected by the learned courts below and rightly so. No such evidence has been adduced from the side of defence on such a plea alleging the character of P.W.1. In absence of any such evidence, the above plea of

the defence is an afterthought and hence to be rejected. The law is well settled that even in the case of an unchaste women, who alleges sexual mischief, her evidence is not to be thrown away and in this regard, the decision of the Apex Court in State of Maharashtra and another Vrs. Madhukar Narayan Mardikar (1991) 1 SCC 57 is relevant, wherein, it has been observed that a woman of such character is entitled to privacy and no one can invade the same. In other words, none can have any license to violate a woman's body even of easy virtue as she is entitled to her privacy and right to live with dignity and therefore, any such evidence regarding sexual mischief committed on her should not be disregarded or to be thrown overboard. The said aspect has been taken cognizance of by the learned Trial Court and the conclusion is, therefore, absolutely correct and that too when, there has been no evidence to show that P.W.1 was of loose character. Even otherwise, in view of the case law discussed hereinabove, a woman of easy virtue does have a right and protection to her privacy and hence, the plea of the petitioner has been rightly rejected by the learned courts below.

11. On the age of the victim, namely, P.W.1, there has been ossification report proved as Ext.14 revealing it to be between 15 and 17 years. Such claim on the victim's age has been disputed by the defence. If the victim is below 16 years of age by the time of alleged incident, her consent becomes immaterial. According to P.W.1, as on the date of examination during trial, she was 16 years old. Considering

the evidence of P.Ws.2 and 3 with the ossification report i.e. Ext.14, the Court is of the view that she was around 16 or 17 years and not above by the time of alleged incident. Even if P.W.1 is held to be above 16 years old by then, her evidence with the FIR immediately lodged of course a day after on the advice of the Sarpanch presupposes that she had no consent. The conduct of a consensual partner would have been different unlike P.W.1, who immediately after her return from the jungle informed the alleged incident to P.Ws.2 and 3, who upon receiving the advice from the local Sarpanch lodged the FIR on the very next day during the morning hours. Considering the entirety of the evidence and prompt reporting of the incident with the local police and when the delay of 36 hours is duly explained, it has to be held that P.W.1 was not a consenting party even assuming her age to be above 16 years as on the date of alleged incident. Had it been below 16 years of age with or without her consent, any such act of sexual intercourse by the petitioner would have been held to be an offence punishable under Section 376 IPC. Assuming for the sake of argument and accepting the prosecution case report i.e. Ext.14, the age of P.W.1 shall have to be held between 15 and 17 years. The Court reiterates that determination of the age has become irrevalent considering the testimony of P.W.1, who promptly reported the incident to her parents. It is not a case of consent of P.W.1. The act of rape committed in the manner described by P.W.1 may appear little bit unusual but according to the Court, she was aged about 16 or 17 years by then and a

village girl and was alone and under fear and therefore, helplessly resigned to her fate.

12. As to the evidence of P.W.4, he had medically examined the petitioner on police requisition and found him capable of sexual intercourse. P.W.4 did not find any external injuries on the accused on account of the sexual intercourse. It has been deposed by P.W.4 that in the case of a rape, sign of struggle may be visible. It is also elicited from P.W.4 during cross-examination that in case of any such cohabitation between P.W.1 and the petitioner over a thorny surface, there should have been injuries on their person. As earlier discussed, absence of injuries may not be fatal to a prosecution case. It may be a circumstance favour to the defence but to be appreciated along with such other materials on record. It is not easy to visualize and conceive of the circumstances and how the petitioner managed or handled the victim, namely, P.W.1, who was under fear, at the time of the act of rape, even though, the same has taken place over a thorny and rough surface. Any such opinion of P.W.4 is therefore to be appreciated as against the entire backdrop of the case and not in isolation.

13. With regard to the absence of any trace of evidence by the time of examination of P.W.1 with reference to the testimony of P.W.5, it is noticed that she had already taken bath prior to such examination and had also changed her clothes and washed it off. In such a situation, it is not unusual to find absence of any trace of medical evidence. According to P.W.5, she did find presence of spermatozoa on clinical

examination of P.W.1. In course of examination, P.W.5 further deposed that she had easy excess of two fingers into the vagina of P.W.1. Irrespective of any such evidence of P.W.5 and even assuming that P.W.1 is accustomed to sexual intercourse, her testimony regarding rape is not liable to be rejected. When she had already taken bath and changed her clothes by the time of medical examination as deposed by P.W.5, it was quite but natural not to have any trace of evidence of rape. The Court is not inclined to accept the defence plea that lack of medical evidence is a ground to disbelieve the prosecution case. The chemical examination report and result thereof marked as Ext.13 revealed that the samples did not have any blood and semen stains and blood group could not be ascertained due to its deterioration. The opinion as a result is that whether the victim was subjected to sexual intercourse could not be proved. The report is of the year 2001, whereas, the incident happened in 1999 and there has been delay in examination of the samples collected and hence, the result is such and the same is on account of its deterioration by passage of time. Even though, the medical evidence as deposed by P.Ws.4 and 5 do not corroborate the testimony of P.W.1 but for that, the entire case is not to be rejected. It has been reiterated umpteen times in catena of decisions that sole testimony of a prosecutrix is enough, if the same is worthy of credit. At times medical corroboration is not received for variety of reasons but that does not mean, a case of rape alleged is to be discarded outrightly.

14. That apart, the IO examined as P.W.6 deposed everything about the investigation and the manner in which, it was conducted including collection of samples and sending the sent to the RFSL, Berhampur. It is admitted by P.W.6 that one K. Rabana Rao was the scribe of the FIR. It is also admitted that the scribe did not make any endorsement on the FIR. Absence of any such endorsement that the report was scribed by some one else is not to take away the credibility of the same. In fact, the scribe was a Home Guard available at the PS and it was with his assistance that the FIR was prepared. There is nothing on record to show that the scribe was in any way an interested witness and hence, absence of endorsement on the FIR certifying that it was prepared at the behest of victim and her family is not to damage the case of the prosecution. Nothing adverse could be elicited from P.W.6 to show that there have been serious lapses in the investigation. The Court is of the view that the testimony of P.W.6 read with others is sufficient to hold that the report was lodged by P.W.1 scribed by a Home Guard on duty by then and the investigation was held and finally concluded leading to the filing of the chargesheet against the petitioner.

15. Lastly, it is pleaded that the witnesses, namely, P.Ws.2 and 3 are interested in the outcome of the case and hence, their evidence should not be accepted without independent corroboration. Admittedly, brother and sister of P.W.1 have not been examined during investigation. Even though, P.Ws.2 and 3 are the parents of the victim and of course interested witnesses, that by itself is not sufficient to discard

their evidence. Law is well settled that evidence of interested witnesses is to be examined with caution. Law is not that a witness since related to the victim, his or her evidence should be suspected and in all cases, corroboration is to be demanded. A single witness sufficient is to prove a case, if he or she is otherwise trustworthy. The interested witnesses are more often than not support the prosecution case but by no means, their evidence is to be doubted. In the case of P.Ws.2 and 3, who are the parents of the victim, there is nothing on record for the Court to disbelieve their version. The incident was reported to P.Ws.2 and 3 on the same day at 10 AM and day after, the FIR was lodged. It is not a case of animosity between the parties. The rejection of marriage proposal by the family of the accused is also not accepted. The defence evidence and upon perusal of the same, the Court finds that there is nothing to suggest that the family had any dispute or that the marriage proposal of P.W.1 was rejected, when it was denied by P.W.3. Considering the entirety of the evidence lead by both sides, the Court is of the humble view that the testimony of P.Ws.2 and 3 are not to be rejected.

16. Accordingly, it is ordered.

17. In the result, the revision petition stands dismissed.

(R.K. Pattanaik) Judge Tudu