[Cites 9, Cited by 0]

Orissa High Court

Girish Sathua vs State Of Odisha on 26 March, 2026

         THE HIGH COURT OF ORISSA AT CUTTACK

                         CRA No.306 of 1995
(In the matter of an application under Section 374 (2) of the Criminal
Procedure Code, 1973)

Girish Sathua                        .......               Appellant

                                -Versus-

State of Odisha                      .......               Respondent

For the Appellant : Mr. Amulya Ratna Panda, Amicus Curiae For the Respondent : Mr. Jateswar Nayak, AGA

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 26.02.2026 :: Date of Judgment: 26.03.2026

S.S. Mishra, J. The present Criminal Appeal is directed against the

judgment of conviction and order of sentence dated 31.10.1995 passed

by the learned District & Sessions Judge, Phulbani in S.T. No.35 of

1994 arising out of G.R. Case No.390 of 1993, whereby the appellant was convicted for the offences under Sections 448 and 376 of the Indian

Penal Code read with Section 3(2)(v) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, 1989 and was

sentenced to undergo rigorous imprisonment for seven years with a fine

of Rs.5,000/-, in default, to undergo R.I. for three months for the offence

under Section 376 IPC.

2. The present appeal has been pending since 1995. When the matter

was called for hearing consistently, none appeared for the appellant.

Therefore, on 24.02.2026, this Court requested Mr. Amulya Ratna

Panda, learned counsel, who is present in Court to assist the Court as

Amicus Curiae. He has readily accepted the same and after obtaining

entire record, assisted the Court very effectively. This Court records

appreciation for the meaningful assistance rendered by Mr. Panda.

3. Heard Mr. Amulya Ratna Panda, learned Amicus Curiae for the

appellant and Mr. Jateswar Nayak, learned Additional Government

Advocate for the State.

4. The prosecution case in brief is that the prosecutrix, wife of

P.W.2, was residing in her matrimonial house under Boudh Police

Station along with her husband, mother-in-law and sister-in-law. It is

alleged that on 03.10.1993 at about 7.00 p.m., the appellant forcibly

pushed open the door of the house, entered the room of the prosecutrix,

threatened her with a knife, gagged her mouth and forcibly committed

sexual intercourse with her against her will. After the occurrence, the

appellant allegedly left the place. On the return of her husband and other

family members, the prosecutrix disclosed the incident to them and on

the following morning, a report was lodged at Boudh Police Station.

Upon registration of the case, investigation was undertaken and after

completion of the investigation, charge-sheet was submitted against the

appellant for the offences under Sections 448 and 376 IPC read with

Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act.

5. The plea of the appellant before the trial Court was one of

complete denial. It was further contended that the case was falsely

foisted against him due to previous ill-feeling and the alleged social

discord in the village. The defence did not adduce any evidence.

6. In order to establish the charges, the prosecution examined seven

witnesses. P.W.1 is the prosecutrix, P.W.2 is her husband, P.Ws.3 and 4

were seizure witnesses, P.W.5 was the doctor, who examined the

accused, P.W.6 was the Investigating Officer and P.W.7 was the doctor,

who examined the prosecutrix. The prosecution also relied upon several

documents including the medical reports and the chemical examination

report.

7. The learned trial Court, on appreciation of the evidence on record,

held that the prosecution had succeeded in proving that the appellant had

committed criminal trespass into the house of the prosecutrix and had

committed rape upon her. The learned trial Court further held that the

prosecutrix belonged to a Scheduled Caste and the appellant not being a

member of such caste, the provisions of Section 3(2)(v) of the SC/ST

(Prevention of Atrocities) Act were attracted. On such findings, the

appellant was convicted and sentenced as indicated above. The relevant

portion of the aforesaid judgment is extracted herein below for ready

reference:-

"15. On the premises, as discussed above, unhesitatingly this Court is of the view that the prosecution has been able to bring home that the accused did enter to the dwelling house of P.W.1 and 2 in the absence of other members of the house, calm down P.W.1 and committed forcible sexual intercourse on her inside the entry room of the house of P.Ws. 1 and 2 without the consent of P.W.1 within the scope of Section 376 I.P.C.

Since the accused has been found to have committed the sexual intercourse on P.W.1 without her consent and that on materials on record accused lapsed no time to go to the cot to pounce over P.W.1 to commit that sexual intercourse, it cannot but be assumed that the accused had dominant intention to commit the offence of rape within the scope of Section 376 I.P.C.

16. As regards the offence u/s. 448 I.P.C., it has been proved beyond reasonable doubt that the accused committed offence u/s. 376 I.P.C. inside the dwelling house of P.Ws. 1 and 2, a house property not belonging to the accused or that, the accused had no semblance of right of entry to that house or that any of the members of the dwelling house of P.Ws. 1 and 2 had consented to the entry of the accused to this dwelling house, accordingly the entry can very well be said to be "unlawful" and "illegal" entry of the accused to this dwelling house of P.Ws. 1 and 2. It has been proved that the

accused committed the offence of rape. Thus, the essential requirement within the scope of Sections 441,442 read with Sec. 448 I.P.C. has been amply brought home against the accused. Add to it, the commission of rape on P.W. 1, much less, a married lady, in her own house is certainly an act intended to cause annoyance and insult her. On approach, on this direction also, the accused can be said to have committed criminal trespass to the dwelling house of P.Ws. 1 and 2. In this case, no other intention behind the criminal trespass can be assessed, except the dominent intention which prompted the accused to commit rape on P.W.1. Intention of the accused can be gathered from the facts and circumstances of the case. The following passage is the observation of the Honourable apex Court in the citation reported in A.I.R. 1970 S.C. page 20 (Rash Behari Chatterjee V. Fagu Shaw and others):-

"5. xxx the law does not require that the intention must be to annoy a person who is actually present at the time of trespass."

is very clear.

17. The substantive offence u/s. 376 I.P.C. and Sec. 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Attrocities) Act, 1989 have provided life imprisonment. But however, P.W. 1 is 'KEUTA' by caste, a member of Scheduled Caste and the accused being a 'gold smith', not being a member of Scheduled caste, the penal provisions provided in special law of Sec.3(2)(v) of the Scheduled Casts and Scheduled Tribes (Prevention of Attrocities) Act, 1989 will be attracted.

Thus, in the net, unhesitatingly a finding can be achieved that prosecution has brought home the offence u/ss 376 and 448 I.P.C, read with sec. 3(2)

(v) of Scheduled castes and Scheduled Tribes(Prevention of Attrocities) Act ,1989 against the accused. The accused is found guilty for the offence u/ss. 448/376 I.P.C. read with sec. 3(2)(v) of Scheduled castes and Scheduled Tribes (Prevention of Attrocities)Act, 1989 and is convicted thereunder."

8. Mr. Panda, the learned Amicus Curiae for the appellant, submitted

that the conviction recorded by the learned trial Court is unsustainable in

law as the evidence of the prosecutrix (P.W.1) is neither reliable nor

consistent. He contended that although P.W.1 alleged in her

examination-in-chief that the appellant forcibly entered the house,

gagged her mouth and committed sexual intercourse against her will, her

cross-examination reveals material contradictions which render her

testimony doubtful. In paragraph-8 of the cross-examination, she

admitted that she could not raise any alarm either when the accused

pushed open the door or even when he allegedly assaulted her. Further,

though she stated in her examination-in-chief that she disclosed the

occurrence to her in-laws upon their return, in paragraph-9 of the cross-

examination, she admitted that she had not disclosed the incident to her

mother-in-law. Accordingly, such inconsistencies materially affect the

credibility of the sole eyewitness and indicate that the prosecution story

is not free from doubt.

9. He further submitted that the medical evidence completely

contradicts the prosecution case. P.W.7, the doctor who examined the

prosecutrix, categorically stated that there were no external injuries on

any part of her body including her thighs or private parts, no foreign

pubic hair was detected and there was no matting of pubic hair on the

pubic area. The doctor further stated that the vaginal swab was collected

for chemical examination and the report (Ext.12) revealed that no semen

or spermatozoa was detected. Significantly, the doctor also opined that

the chance of sexual intercourse within forty-eight hours prior to the

examination was very remote. The absence of semen in the vaginal swab

and the medical opinion ruling out recent sexual intercourse create a

serious doubt regarding the allegation of rape.

10. Mr. Panda also contended that the surrounding evidence does not

corroborate the prosecution case. P.W.2, the husband of the prosecutrix,

admittedly had no direct knowledge of the occurrence and his testimony

is based solely on what was allegedly disclosed to him after his return

from Boudh. The prosecution also failed to examine other material

witnesses such as the mother-in-law and sister-in-law who were stated to

have been informed about the occurrence. It is, therefore, argued that

when the medical evidence renders the ocular testimony improbable, the

Court ought to extend the benefit of doubt to the accused. In support of

this contention, he placed reliance upon the decision in Suresh v. State

of Haryana, Criminal Appeal No.281/SB of 1992, wherein it was held

that when medical evidence contradicts the prosecution version and no

signs of recent sexual assault are found, the testimony of the prosecutrix

requires careful scrutiny before sustaining a conviction.

11. I have carefully considered the submissions advanced by the

learned Amicus Curiae for the appellant and the learned counsel for the

State and have gone through the records of the case, including the

depositions of the witnesses, the medical evidence and the documents

produced.

12. Upon consideration of the rival submissions and careful scrutiny

of the evidence on record, this Court finds that the case of the

prosecution essentially rests upon the testimony of P.W.1, the

prosecutrix. It is well settled that the evidence of a prosecutrix stands on

a higher pedestal and if it is found reliable and trustworthy, conviction

can be based on her sole testimony without further corroboration.

However, where serious infirmities appear in the prosecutrix evidence or

where the medical and scientific evidence runs contrary to the

prosecution case, the Court must carefully scrutinize the evidence before

sustaining a conviction.

13. In the present case, the medical evidence assumes considerable

significance. P.W.7, the doctor who examined the prosecutrix, has

clearly stated that she did not find any external injuries on her body

including her thighs or private parts. She also did not find any foreign

pubic hair or matting of pubic hair. Importantly, the vaginal swab did not

reveal the presence of semen and the doctor opined that the possibility of

sexual intercourse within forty-eight hours prior to the examination was

very remote. Extract of P.W.7's testimony is profitable to be reproduced

for true appreciation:

"1. On 4th October, 1993 I was working as L.T.R.M.O. in Sub-divisional Hospital Boudh. On that day on police requisition I examined Santoshini Beriha W/O Bipra Beriha of village Rani Sahi, P.S. Boudh, then District Phulbani and found the following injuries.

(i) She had no external injuries on her person either on her theigh or on her private or on her other part of the body.

(ii) I found no foreign pubic hairs over her private parts.

(iii) I found no matting of pubic hairs on her pubic area.

(iv) On clinical examination (naked eye examination) there is no evidence of menoral diseases.

xxxxx xxxxxx xxxxx The chance of sexual intercourse is very remote within 48 hours, before the time of my examination."

14. These medical findings create a serious inconsistency with the

prosecution version that the appellant forcibly committed sexual

intercourse and ejaculated semen inside the vagina of the prosecutrix.

When the medical expert categorically stated that the possibility of such

intercourse within the relevant period is remote and the chemical

examination report also fails to detect semen, the Court cannot ignore

such evidence.

15. The prosecution has also failed to establish the applicability of

Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act. Except for

the statement of the prosecutrix that she belongs to "Keuta" caste, no

material has been produced to show that she belongs to a Scheduled

Caste as notified under the Constitution (Scheduled Castes) Order. In the

absence of satisfactory proof of such status, the conviction under the said

provision cannot be sustained. The Honourable Supreme Court of India

in the case of Masumsha Hasanasha Musalman vs State of

Maharashtra, reported in 2000 (3) SCC 557, held thus:-

"Section 3(2)(v) of the Act provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, commits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such

member, shall be punishable with imprisonment for life and with fine. In the present case, there is no evidence at all to the effect that the appellant committed the offence alleged against him on the ground that the deceased is a member of a Scheduled Caste or a Scheduled Tribe. To attract the provisions of Section 3(2)(v) of the Act, the sine qua non is that the victim should be a person who belongs to a Scheduled Caste or a Scheduled Tribe and that the offence under the Indian Penal Code is committed against him on the basis that such a person belongs to a Scheduled Caste or a Scheduled Tribe. In the absence of such ingredients, no offence under Section 3(2)(v) of the Act arises. In that view of the matter, we think, both the trial court and the High Court missed the essence of this aspect. In these circumstances, the conviction under the aforesaid provision by the trial court as well as by the High Court ought to be set aside."

16. However, the evidence on record does indicate that the appellant

had entered into the house of the prosecutrix and behaved in a manner

which outraged her modesty. The testimony of the prosecutrix regarding

the unauthorized entry of the appellant and his conduct inside the house

remains largely unshaken. Such conduct clearly falls within the ambit of

assault or use of criminal force to a woman with intent to outrage her

modesty. Therefore, though the prosecution has failed to establish the

charge of rape beyond reasonable doubt, the materials on record are

sufficient to bring home the offence punishable under Section 354 of the

Indian Penal Code.

17. It is brought to the notice of this Court that the appellant has

already undergone one year and two months of imprisonment during the