THE HIGH COURT OF ORISSA AT CUTTACK CRA No.160 of 1994 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) (1) Papu @ Jayanarayan Muna (2)Parsu Muna (3) Brusava Muna (4) Golekha Muna ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. Bijaya Kumar Ragada, Amicus Curiae assisted by Mr. Sasanka Sekhar Das, Advocate For the Respondent : Mr. Sobhan Panigrahi, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 05.02.2026 :: Date of Judgment: 19.02.2026 S.S. Mishra, J. The present Criminal Appeal, filed by the appellants is directed against the judgment and order dated 21.03.1994 passed by the learned Additional Sessions Judge, Balangir in Sessions Case No.132/39 of 1993, whereby the accused-appellant No.1 has been convicted U/s.376/366 of I.P.C. and other accused appellants U/s. 366 of the I.P.C. Accordingly, accused-appellant No.1 has been sentenced to undergo R.I. for a period of 7 years for offence U/s.376 of I.P.C. p. 2 and further R.I. of 4 years for offence U/s.366 of I.P.C. The other accused-appellants have been sentenced to R.I. for 4 years for offence U/s.366 of I.P.C. 2. While the appeal was pending, this Court was apprised of the fact that appellant no.2-Parsu Muna has expired. Therefore, vide order dated 19.08.2025, the appeal against the deceased appellant No.2 stood abated, in the absence of any motion on behalf of the legal heirs or next friend of the deceased appellant U/s.394 of Cr.P.C. Therefore, the present appeal is confined to appellant nos.1, 3 and 4. 3. None appeared for the appellants despite repeated calls. Therefore, this Court requested Mr. Bijaya Kumar Ragada and Mr. Sasanka Sekhar Das, learned Counsel, who were present in Court, to assist the Court in the capacity of Amicus Curiae and they have readily accepted the same and after obtaining the entire record, assisted the Court very effectively. An exhaustive written note of submission has been filed. 4. Heard Mr. B.K. Ragada, learned Amicus Curiae along with Mr. Sasanka Sekhar Das, learned counsel appearing for the appellants and p. 3 Mr. Sobhan Panigrahi, learned Additional Standing Counsel for the State. 5. The prosecution case, at its highest, rests on the statement of the prosecutrix. As per her version, about a month prior to the occurrence, on a Monday evening, while she was engaged in cleaning utensils near the bari side of her house, the accused- appellant Pappu suddenly emerged from behind a straw heap, gagged her mouth and forcibly took her to the house of one Petu Ghasi, where she was confined in a room. During the midnight hours, she was taken to village Bharatbahel to the house of a relative described as an elder mother, who provided them food. While they were staying there, Brusabha, the brother of the accused Pappu, visited the house, held some discussion with him and thereafter left. He again returned in the night along with Golekh, Sardul and Parsu, bringing two saris, two blouses and two sayas. The prosecutrix was asked to wear a sari and, upon her hesitation, she was allegedly threatened. It is further alleged that the accused Pappu forcibly removed her chhadi and frock. Page 4 of 23 It is the further case of the prosecution that thereafter the prosecutrix was taken to Degaon, where they boarded a bus and proceeded to Saintala. From Saintala, she was taken to village Rundimahal to the house of a relation of the accused. The inmates of the said house were requested to allow the accused Pappu and the prosecutrix to stay there for about two months, to which they consented. After taking bath and meals, the others left, leaving behind the accused Pappu and the prosecutrix. On Wednesday night, the accused Pappu slept separately and the prosecutrix slept with a girl of that house. However, on Thursday night, the accused and the prosecutrix slept together while the other family members slept separately. During that night, the accused allegedly committed rape upon her against her will. It is further alleged that the accused continued to commit rape upon her on Saturday night as well. Upon coming to know that the prosecutrix had been taken away by the accused Pappu, Nathura, the grandmother of the prosecutrix, went to the house and narrated the incident to Tarenisen Bibhar (P.W.3), the father of the prosecutrix. A search was made for the prosecutrix, but without success. On 27.04.1993, P.W.3 lodged a p. 5 written report at Sadar Police Station, on the basis of which a case was registered against the accused Pappu and investigation commenced. During the course of investigation, the prosecutrix was rescued and the accused Pappu was arrested on 03.05.1993. Immediately thereafter, both the accused and the prosecutrix were sent for medical examination and for determination of their bony age. The Investigating Officer seized the wearing apparels of the accused and the victim, caused the statement of the prosecutrix to be recorded under Section 164 Cr.P.C., and forwarded the material objects to the R.F.S.L., Sambalpur for examination. Upon completion of investigation, charge-sheet was submitted. The learned trial Court framed charges under Sections 366 and 376 of the Indian Penal Code against the accused-appellant Pappu and under Sections 109 read with 366 and 376 of the Indian Penal Code against the other accused persons. The accused Pappu alias Jayanarayan Muna were put to trial by the learned trial Court for the alleged commission of the offence under Sections 366/376 of I.P.C. and the other accused persons were p. 6 tried for offence under Section 109 of I.P.C. for abatement of the commission of offence under Section 366/376 of I.P.C. 6. In support of its case, the prosecution examined eleven witnesses and also adduced documentary evidence marked as Exts. 1 to 20. P.W.2 is the victim girl, and P.W.3 is the informant and father of the victim. P.W.4 is the grandmother of the victim. P.W.1 was examined to state that the accused, Pappu, and the prosecutrix had come to her house. P.W.5 was a radiology specialist, who reported that the victim was a minor, aged between 14 and 15 years. P.W.6 was the doctor, who examined the vaginal smear and penis swab and submitted reports vide Exts. 6 and 7. P.W.9 was the Medical Officer of Chudapali, who examined the accused and submitted his report vide Ext. 16. P.Ws. 7 and 8 were the Investigating Officers. P.W.10 was the Head Pandit of Malmanda Government Primary School, who was examined to state that the victim was admitted to the school on 9.7.1984 and that her date of birth was recorded as 9.6.1979. P.W.11 was another doctor of D.H.H., Balangir, who examined the victim. 7. The defence plea was of complete denial and it can be gathered from the cross-examination of the witnesses and the DWs that the p. 7 marriage between Papu and victim was fixed and as per some customary practices the father of the groom Papu was to give Rs. 5000/-, however, he paid just Rs.2500/- with understanding to pay the balance later, however as the same could not be paid the informant father through his daughter(victim) has foisted this case against him. Accordingly, he faced trial. 8. Based on the testimony of the prosecutrix and supporting witnesses, alongside the admitted exhibits, the learned trial Court systematically addressed the core issues: whether sexual intercourse occurred between the victim and accused appellant No.1, and whether such acts were consensual. The Court concluded that the evidence established guilt beyond a reasonable doubt, convicting accused appellant No. 1 under Sections 376 and 366 of the IPC, while the remaining accused were found guilty under Section 366 of I.P.C.. The specific observations and findings of the learned trial Court are reproduced below for convenience of reference:- “10. It is now to be considered if the sexual intercourse was with or without consent of the p. 8 victim. According to Section 375 I.P.C. the man is said to commit rape who commits sexual intercourse with a woman with or without consent, when she is under 16 years of age. In the present case, the age of the victim has been held to be approximately 14 to 15 years. Under the circumstances, the intercourse with or without consent of the victim would come within the purview of rape. 11. The evidence of p.w.2 shows that she was taken to different houses in various villages. The other accused persons brought sari, saya and blouse for her when she was confined in the house of a relative at Bharatbahal and told her to wear the same. She refused, but then agreed to wear under threat. Her evidence also shows that in the midnight they all took her to Degaon chowk wherefrom they boarded a bus and reached at Saintala From there they came to village Rundimahul, a house of a relative and approached the owner of the house to accommodate the accused Pappu and the victim for 2 months. It also shows that the house owner agreed to it. I may mention here the observations of the Rajasthan High Court in Ramjilal and another-vrs. State, relied on Α.Ι.R. (38) 1951- relied on by the learned counsel wherein it was observed thus: “Person joining at subsequent stage of offence. Whether guilty of abduction. Even though the offence of abduction is a continuance one, any known joining the accused at a subsequent stage cannot be held to be equally guilty of the offence u/s 366 I.P.C., if he was not associated with him from the very beginning, unless a charge of conspiracy is established against him." There can be no doubt regarding the above observations. However, every criminal case has to be decided on the basis of its particular p. 9 facts and circumstances. In the case before Rajasthan High Court, the accused Mohanlal joined hands with Ramjilal at Basundra and thereafter helped him in forcing the girls in calling him as their father and keeping them confined in a locked house and changing their caste and „gotras‟. It was in that context that the Rajasthan High Court made the above observations in the present case, the minor remained in the custody of the kidnapper when the other accused persons aided him for taking her to different houses in various villages. The above materials clearly show that the other accused persons took part in the actual removal of the girl immediately after she was taken out of the house of her guardian and by their aid the commission of offence u/s 366 I.P.C. was facilitated. There is total lack of material that they had any knowledge that the girl would be subjected to sexual intercourse by accused Pappu, The accused Pappu had exceeded the same, he would be alone liable for his individual acts. In this view of the matter, it cannot be said that the other accused persons had any intention to aid the commission of the offence u/s 376 I.P.C. 12. As a result of the above discussions, I hold that the accused Pappu alias Jayanarayan Muna guilty u/ss.366/376 I.P.C. and the other accused persons u/s 109 for abatement of the offence u/s 366 I.P.C. I convict them thereunder.” 9. Aggrieved by the aforementioned judgment of conviction and order of sentence, the present appeal has been filed. 10. Mr. Bijaya Kumar Ragada along with Mr. Sasanka Sekhar Das, learned Amicus Curiae appearing for the appellants argued the appeal p. 10 at length and also filed written note of submission on 12.02.2026. The entire thrust of the argument advanced by Mr. Ragada, learned Amicus Curiae centres on creating a doubt with regard to the age of the prosecutrix. It is contended that the prosecutrix was major at the time of the alleged incident and there was a marriage proposal between the accused No.1 and the prosecutrix. The family of the accused were supposed to customarily pay Rs.5,000/-, which could not be satisfied by the family of the accused. Therefore, the present case is registered out of vengeance. In support of the said contention, the appellants have adduced defence evidence by examining D.W.2, who deposed that prior to the marriage proposal between the accused- Papu and the prosecutrix, as per the community customs, a sum of Rs.5,000/- was agreed to be paid by the groom’s father to the bride’s father, out of which, only Rs.2,500/- was paid and due to non- payment of the balance amount, the proposal for marriage was broken. He further clarified that no marriage date was fixed and no ceremony was performed. Therefore, Mr. Ragada, submitted that the evidence on record if collectively read together, it establishes that failure of the matrimonial negotiation, resulted the grievance on the p. 11 part of the prosecutrix’s family led to filing of the false case. Such circumstance furnishes a plausible motive for animosity and false implication. At the same time, Mr. Ragada, learned Amicus Curiae attempted to establish that this is a case of consensual sexual encounter between the accused-Papu and the prosecutrix. 11. Mr. Ragada, learned Amicus Curiae submitted that the finding regarding the age of the prosecutrix is legally unsustainable and is founded on unreliable material. It is contended that the learned trial Court erred in placing reliance upon the School Leaving Certificate (Ext.17) and the school admission register (Ext.18 series) to determine the age of the prosecutrix. PW-10, the Head Pandit, admitted that the date of birth recorded therein was not based on any contemporaneous birth certificate or statutory record, but solely on entries in the admission register, which were not made by him. No evidence was adduced to establish the source or authenticity of the information furnished at the time of admission, nor were the parents examined or any primary documentary proof produced. In such circumstances, the school records could not have been treated as p. 12 conclusive proof of age, particularly when the medical evidence was only approximate. It is further submitted that the reliance on ossification test was misplaced. Medical opinion regarding age is inherently approximate and carries a recognised margin of error. Placing reliance on Birka Shiva v. State of Telangana, 2025 INSC 863, and Sribatcha Khamari v. State of Orissa (1993) 6 OCR 661, learned counsel argued that when age is a pivotal factor and the medical estimation admits a possible variation of two years, the benefit of doubt must go to the accused. He further contended that the trial Court committed a manifest error in discarding the evidence of DW-1, the Gramrakhi, who proved the birth register entry (Ext-A), a contemporaneous public record maintained in the ordinary course of official duty, recording the date of birth as 08.06.1975. This entry, being prior in point of time to the school record showing the date of birth as 09.06.1979, creates a material discrepancy of four years. The prosecution failed to explain or rebut this contradiction. Selective reliance on a later school record while ignoring an earlier statutory p. 13 birth register, it is argued, renders the finding on age wholly unreliable and the conviction unsustainable in the eyes of law. 12. I have carefully gone through the evidence on record and taken into consideration the rival contention made by learned counsel for both the parties. In the light of the aforementioned, the evidence of the prosecution are being analysed. P.W.2 is the prosecutrix. She deposed that the incident took place about nine months back on a Monday evening. When she was cleaning utensils at the back side of her house, the appellant No.1 had concealed himself inside the straw heap and suddenly bounced upon her and gagged her month by his towel and dragged her by holding her right hands. She further deposed that the appellant No.1 took her to the house of one Petu Patra (P.W.1) through the paddy field and kept her there for some time. At about midnight, the accused-Papu removed her from the house of P.W.1 and took her to village Bharatbahal. P.W.1 and her husband accompanied for a little distance and left there. They walked a long distance and reached the village in the morning and the accused-Papu took her to his elder mother’s house in the said village. The elder mother of the accused-Pappu fed her. She further deposed p. 14 that while she was staying in the said village, the elder mother of the accused brought two sarees, two blouses and two sayas and gave those clothes to her and asked her to wear them. The appellant No.1 forcibly removed her wearing apparels and asked her to wear the saree. She deposed that during the night hours, all the accused persons took her to Deogaon Chhak, from where they boarded a bus and proceeded to Saintala. Thereafter, she was taken to village Rundhimahul to the house of one of their relatives. She stated that both she and the accused persons stayed in the said house. On the first night, she slept with one of the girls of that family, while the accused slept separately along with his nephew. From Monday to Wednesday, the same thing went on. However, on Thursday night, the accused persons arranged for her to sleep with the appellant No.1. She further deposed that on the same night, accused No.1, namely Pappu, committed sexual intercourse with her. According to her, he penetrated his penis into her vagina and discharged semen therein, as a result of which she experienced pain in her private parts. On the following morning, she took her bath. She stated that she was provided with food during the day; however, in the night she slept p. 15 separately along with one of the girls of the family, as some relatives had come to the house. She further stated that on Saturday also she was provided with food and during the night, accused No.1 again cohabited with her. On the next day, after being provided food, she went to witness the Danda Jatra in the village along with the female members of the house. She deposed that accused Pappu was present in the gathering of male persons at the said Jatra, while she remained with the female group. During the course of the Jatra, the police arrived at the spot and apprehended both of them. Thereafter, the police brought her and the accused to the police station. Subsequently, she was sent for medical examination and her statement was recorded by a Magistrate. In examination-in-chief, P.W.2, the prosecutrix has narrated the entire incident from the time of kidnapping her up till she was recovered. The prosecutrix was put to very extensive cross- examination. In the cross-examination, the prosecutrix further clarified the ordeal faced by her, during stay with the accused and she has also narrated the role played by each accused in the instant case. P.W.1 is an independent witness, who has supported the version of P.W.2 by saying that the accused No.1-Pappu and the p. 16 victim girl came to her house. By that time, they had already taken their night meal. She further stated that the accused and the prosecutrix asked them to give water and after drinking the water, they stayed for some time. On repeated query as to why they have come there, no reply was given by them and they remained silent and immediately left the house. P.W.3 is the father of the prosecutrix, who is also the informant in the present case. He in his deposition has stated that his elder mother, Mathura Bibhar informed him that his daughter (P.W.2) is missing from the evening. They started searching her till next day afternoon in the house of different persons. Since they could not trace her out, he went and reported the case before the police station. Ext.1 is the report given by him and Ext.1/1 is his signature. He further deposed that the School Leaving Certificate of P.W.2 was seized by the Investigating Agency and the same was produced and marked as Ext.2. He further deposed that he knew the accused Pappu, who had kidnapped his daughter. The defence cross-examined this witness to elucidate that his daughter (P.W.2) is not a minor and her age is more p. 17 than seventeen years, but this witness (P.W.3) stuck to his version and stated that his daughter (P.W.2) is a minor. P.W.4 is the grandmother of the prosecutrix (P.W.2) and she is cited by the prosecution as an eye witness in so far as the offence under Section 366 of I.P.C. is concerned. She deposed that the incident took place about nine months back on a Monday in the evening. She along with her daughter-in-law had gone to answer the call of nature. While going, she noticed the prosecutrix (P.W.2) in the bari of their house, engaged in cleaning the utensils. After answering the call of nature, when they were returning, they saw the accused in process of taking away P.W.2 by dragging her. Being an elderly lady, she was unable to resist or intervene. Immediately she went to the house and reported the incident. She further stated that P.W.2 was subsequently recovered from the village Rundhimahul. Her testimony lends corroboration to the version of the prosecutrix (P.W.2) as well as the informant (P.W.3). P.W.5 is one of the doctors examined by the prosecution to ascertain the age of the victim. He conducted an ossification test and, p. 18 on the basis of the said examination, assessed the age of the victim to be between 14 to 15 years. His report was exhibited as Ext.4. P.W.6 is the doctor examined by the prosecution, who conducted examination of the vaginal swab of the prosecutrix as well as the penis swab of the accused–appellant No.1. The reports pertaining to the said examinations were exhibited as Exts.6 and 7. The defence did not cross-examine the said witness. P.W.11, the third doctor examined on behalf of the prosecution, is a crucial witness in the present case. She deposed that the age of the victim girl was about 14 years. She examined the victim on 03.05.1993 at about 10:30 A.M. On examination, she found no blood or seminal stains on the clothes of the victim. She also did not notice any marks of violence, such as scratches or bruises, on the body of the victim girl. No effused or dried blood clots were found on the genital organ or in its surrounding area, and no foreign hair was detected. She further stated that the vagina admitted two fingers easily. She deposed that the determination of the victim’s age was referred to a radiologist for X-ray examination. As per the radiological findings, the breasts p. 19 and areola were not developed; the nipples were small in size; the breasts were not well developed; axillary hair was not well developed; pubic hair was not developed; and the labia majora were not developed and remained closed. She also opined that if the victim had washed her private parts, there might not be any visible signs of sexual intercourse, and spermatozoa might not be detected even within 12 hours. The defence has not cross-examined P.W.11 to a great extent but made certain suggestions, which are not relevant. 13. Reading of the evidence of P.W.5 and P.W.11 together makes it very clear that the victim was a minor below the age of sixteen years. That further established from the evidence of the informant (P.W.3), who has produced the School Leaving Certificate of the prosecutrix. In view of such evidence, the judgment cited by Mr. Ragada, learned Amicus Curiae in the case of Manoranjan @ Manu Prusty and another vrs. State, reported in (1992) 5 OCR 200 will have no application in the facts scenario of the present case. 14. The attempt made by Mr. Ragada, learned Amicus Curiae, to create a doubt in the chain of events in the present case does not merit p. 20 acceptance. The prosecution case stands firmly established by the cogent and unequivocal evidence of P.W.2 and P.W.11, which further draws substantial corroboration from the testimonies of P.Ws.1, 3 and 4. The learned trial Court has rightly analysed the evidence in the instant case arrived at the conclusion as reproduced in the preceding paragraphs. In view of the nature and quality of evidence adduced by the prosecution, I have no hesitation in forming the conclusion that the learned trial Court is right in its analysis and the conclusion whereby the appellant No.1 has been convicted for the offence under Sections 376/366 of I.P.C. and other accused persons have been convicted for the offence under Section 366 of I.P.C. and on each count, they have been sentenced. 15. At this stage, Mr. Ragada, learned Amicus Curiae appearing for the appellants, submitted that the incident relates back to the year 1993 and in between three decades have already been passed. At that point of time, the appellant No.1 was about 22 years of age, the appellant No.3 was 28 years of age and appellant No.4 was about 36 years of age. At present, the appellant No.1 is aged about 56 years, the appellant No.3 is aged about 61 years and the appellant No.4 is p. 21 about 78 years of age. Over the years, they have led a dignified life, integrated well into society, and is presently leading a settled family life. Incarcerating them after such a long delay, it is argued, would serve little penological purpose and may in fact be counter- productive, casting a needless stigma not only upon them but also upon their family members, especially when there is no suggestion of any repeat violation or ongoing non-compliance with regulatory norms. Therefore, in the fitness of the situation, a lenient view should be taken and the sentence may be modified. 16. In the present case, initially five accused persons were stood charged for the offences under Sections 366/376 of I.P.C. read with Section 109 of I.P.C. for abatement of the offence under Section 366/376 of I.P.C. The learned trial Court found the appellant No.1- Pappu @ Jayanarayan Muna guilty for the offence under Sections 366/376 of I.P.C. whereas the other accused persons have been convicted for the offence under Section 366 of I.P.C. under the aid of Section 109 of I.P.C. and on each count, sentence has been awarded. During pendency of the appeal, the accused-Sardula Baga expired. Therefore, his criminal appeal being CRA No.126 of 1994 stood p. 22 abated. Similarly, in the present appeal, the accused No.2- Parsu Munda has expired. Therefore, the present appeal qua him stood abated vide order dated 19.08.2025 in absence of any motion on behalf of the legal heirs or next friend of the deceased appellant No.2. Hence, the present appeal only survives qua the appellant Nos.1, 3 and 4. 17. Taking into account the nature of evidence and the gravity of offence, although the appeal is pending for more than three decades, I am not inclined to give any indulgence to appellant No.1-Pappu @ Jayanarayan Muna, who has been convicted for both the offences under Sections 366/376 of I.P.C. Hence, his appeal in so far as conviction and sentence stands dismissed. However, while maintaining the conviction recorded against the remaining surviving accused i.e. appellant Nos.3 and 4 for the offence under Section 366 of I.P.C., I am inclined to modify the sentence. Accordingly, the appellant Nos.3 and 4 are sentenced to undergo R.I. for a period of one year each. The period the appellants have already undergone shall be set off from the substantive sentence. Page 23 of 23 18. Accordingly, the CRA is partly allowed in so far as the appellant Nos.3 and 4 are concerned, however, the same is dismissed qua the appellant No.1. 19. This Court acknowledges the effective and meaningful assistance rendered by Mr. Bijaya Kumar Ragada and Mr. Sasanka Sekhar Das, learned Amicus Curiae in this case. Learned Amicus Curiae are entitled to an honorarium of Rs.5,000/- (rupees five thousand) each to be paid as a token of appreciation. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 19th February, 2026/Swarna Designation: Senior Stenographer