THE HIGH COURT OF ORISSA AT CUTTACK CRA No.398 of 1994 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) (1) Biswanath Khamari (2) Arati Parida ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Ms. Kritika Banarjee, Advocate For the Respondent : Mr. Sobhan Panigrahi, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 12.03.2026 :: Date of Judgment: 17.03.2026 S.S. Mishra, J. The present Criminal Appeal, filed by the appellants are directed against the judgment and order dated 13.09.1994 passed by the learned CJM-cum-Assistant Sessions Judge, Baripada in Sessions Trial Case No.8/43 of 1994, whereby the appellant No.1 has been convicted for the offences under Sections 366/376 of I.P.C. and the appellant No.2 has been convicted for the offence under Section 366 of I.P.C. On that count, the appellant No.1- Biswanath Khamari has been sentenced to undergo R.I. for eight years and to pay a fine of Rs.500/-, in default to undergo R.I. for three months for the offence under Section 366/376 of I.P.C. whereas the appellant No.2-Arati Parida has been sentenced to undergo R.I. for three and half years and to pay a fine of Rs.500/-, in default to undergo R.I. for three months. All the sentences were directed to run concurrently. 2. Heard Ms. Kritika Banarjee, learned counsel for the appellants and Mr. Sobhan Panigrahi, learned Additional Standing Counsel for the State. 3. The prosecution case, in brief, is that one Surendra Behera of village Bhugudakata has a daughter, namely, the prosecutrix. She was initially given in marriage to one Parasia Behera. However, due to ill- treatment meted out to her by Parasia Behera and the fact that he had kept another woman as his wife, she left her matrimonial home. Subsequently, she was married to one Rabindra Singh of village Kalikapur under Baripada Sadar Police Station. Alleging similar ill- treatment by her second husband, she also left his house and began searching for work to maintain herself and her minor child. While she was sitting by the roadside in front of Waliganj School, contemplating whether to return to her mother’s house or go elsewhere in search of employment, she met Arati (appellant No.2), who was returning home after finishing her work as a maid-servant. Upon enquiry, Arati learnt about the distressed condition of the prosecutrix and brought her to her house, consoling her and asking her to stay there for the time being. Arati was living with her husband Biswanath (appellant No.1) and their son aged about 7 to 8 years. In the evening, Biswanath returned home. After some discussion between him and Arati, Arati approached the prosecutrix and suggested that she could earn a considerable amount of money if she agreed to go to different lodgings during night hours. The prosecutrix refused to engage in such work. On the following morning, the prosecutrix expressed her desire to leave the place and return to her mother’s house. However, Arati asked her to accompany them to another place where, according to her, suitable work could be arranged. Accordingly, at about 10.00 A.M., Arati, Biswanath, the prosecutrix and their son proceeded towards the bus stand and at about noon boarded a “Bhai-Bhai” bus. They got down at Nichuapada and reached there at about 2.30 P.M. Thereafter, Biswanath went to the watchman of the Dak Bungalow at Nichuapada and obtained the key of a room. Arati and Biswanath decided to stay there for the night. The prosecutrix expressed her unwillingness to stay in the Dak Bungalow, but in the evening all of them took their meal at the house of the Choukidar. Subsequently, Biswanath asked Arati to bring the prosecutrix to the Dak Bungalow. Initially, the prosecutrix refused and requested them to stay in the Choukidar’s quarters instead. However, Arati forcibly dragged her towards the Dak Bungalow and kept her in one of the rooms. By that time, Biswanath was already present in the room. A mattress was taken down from the cot and placed on the floor, and the prosecutrix was asked to sleep on it. Arati slept at a short distance along with her son. Another elderly man was also sleeping at some distance in the same room, while Biswanath slept on the cot. A small oil lamp (chungi) was burning in the room, which Biswanath thereafter extinguished. Biswanath wanted to rape the prosecutrix and therefore he touched her legs by means of his hands. She screamed. The old man threatened her not to shout and in case of shouting’s, ghost would appear. Out of fear, she did not shout. Thereafter towards the end of the night, the accused Biswanath pulled out her saree, penetrated his penis into her vagina and committed sexual intercourse without her consent and against her will. She raised hulla but accused gagged her mouth by putting her saree. After completion of rape on her, Biswanath threatened her to kill herself and her child in case of shouting. Thereafter, Arati requested the prosecutrix to stay for one more day in the said Dak Bungalow, stating that if she remained there, the attention of outsiders would be attracted and she would be able to earn more money. Subsequently, on her request, both the accused persons brought the prosecutrix to Baripada. During the journey, accused Biswanath got down from the bus at Traffic Chhak, while Arati took the prosecutrix to her house. The prosecutrix later went to the house of Arati to collect the clothes she had left there. While returning with her clothes, she met her parents on the road near the school and narrated the incident of rape to them. The alleged occurrence took place during the night of 25/26.09.1993, and the report was lodged at 10.00 P.M. on 26.09.1993 at Baripada Sadar Police Station. On police requisition, the victim woman was medically examined by a doctor. The police seized the saree, saya and blouse which she was wearing at the time of the alleged occurrence. The ossification test report indicates that the age of the victim was approximately 25 years at the relevant time. The medical examination report, however, does not disclose any findings which corroborate the testimony of the prosecutrix. Further, the laboratory examination of the cotton swab collected by the doctor from the vagina of the victim did not reveal the presence of any spermatozoa. Although the report of the Chemical Examiner indicates that the saya contained patches of human semen, the said saya, which was subsequently returned to the Court by the State Forensic Science Laboratory, was disowned by the victim woman, who stated that it was not her saya. Consequently, the said material does not lend support to the prosecution case. On the stance of complete denial and claim of trial, the appellants were put to trial after charges being framed. 4. In order to prove its case, the prosecution examined as many as seven witnesses. Out of them, P.W.1 is the father of the victim and P.W.2 is the victim herself. P.W.3, who at the relevant time was the Choukidar of the Inspection Bungalow at Nichuapada, and P.W.4, his wife, have completely denied the case of the prosecution, and the presence of the victim woman at the Nichuapada Inspection Bungalow. P.W.5 was an outsider who, on the night of the alleged occurrence, slept in that room; however, he has also denied the case of the prosecution. P.W.6 was the wife of a rickshaw puller, who was residing near the house of the accused persons at the relevant time; however, she has stated that she did not know any woman by the name of the victim (name redacted) and P.W.7 is the I.O. of the present case. 5. As all other prosecution witnesses turned hostile, the learned trial Court, primarily relying upon the testimony of the prosecutrix (P.W.2) and her father (P.W.1), acquitted accused appellant No. 2 of the offence under Sections 376/109 of the I.P.C. However, the learned trial Court found her guilty of the offence under Section 366 of the I.P.C. On the other hand, accused appellant No.1 was held liable for the offences under Sections 366 and 376 of the I.P.C. The relevant portion of the judgment of the learned trial Court is reproduced below:- “14. Whether the entire case as narrated by P. W.2 can be relied on and her sole testimony is enough to warrant a conviction against the accused persons. I have discussed above that there is no other ocular evidence except P.W.1 regarding the fact of commission of rape on P.W.2. I have narrated the circumstances which partially corroborate the testimony of P.W.2 regarding her stay in the house of the accused persons, her subsequent removal to Nichuapada I.B., and commission of rape on her by accused Biswanath being aided by the other accused Arati. I have already discussed that these accused persons with their son were seen by P.Ws. 3 4 and 5 at Nichuapada I.B. on 25.9.93. The victim woman categorically says that she was taken by these accused persons on 25.9.93 and there she was raped inside a room of the I.B. by accused Biswanath being persuaded and aided by accused Arati. The evidence of P.W.2 appears to be spontaneous and the continuity of the case from the ginning to the end appears to be reliable. The evidence of P. W.2 read with the evidence of P.Ws. 1, 3, 4 and 5 corroborates the fact of the presence of P.W.2 in the house of the accused persons prior to her removal to Nichuapada I.B. on 25.9.93. The presence of the accused persons in the Inspection Bungalow at Nichuapada making the case a probable one that the victim woman was taken to that Inspection Bungalow by the accused persons. The circumstances leading to the commission of rape on her do not appear that the victim woman was a consenting party to the rape. The circumstances are so cogent that these two accused persons wanted to make P.W.2 a prostitute and the accused Biswanath by committing rape on her wanted her reaction and when she refused to be a prostitute, they all returned home. The conduct of accused Biswanath at the time of his boarding the bus and at the time of getting down from the bus at the bus stand was suspicions. The circumstances under which the victim lady was taken to Nichuapada I.B. (on the ground of providing her some engagement to earn her livelihood cannot be treated that she surrendered her body for the satisfaction of the lust of accused Biswanath. She surrendered her body being compelled under the circumstances as she was raped at an unknown place far away from her native place and none known to her was present there. In these circumstances, her screaming or shouting could have been no meaning. She protested and failed and ultimately accused Biswanath committed rape on her and her helpless surrender of her body to the peaceful enjoyment by accused Biswanath cannot be treated as a true consent. When there was no violence or protest by the victim woman, there can be no injuries on her person or on the person of accused Biswanath. 15. No explanation has been offered by the accused persons in what connection accused Biswanath and Arati had gone to Nichuapada I.B. on 25.9.93. That was the day of commission of rape on Saraswati at Nichuapada I. B. I find the evidence of P.W.2 to be consistent, probable and having no discrepancies in connection with material facts and there is nothing to discard her testimony as unreliable, or untrustworthy. If she was a consenting party to the rape, she could not have filed such a case on the next day on her return from Nichuapada to Baripada and she could have concealed the said fact from others. None had seen the occurrence so as to cast any social stigma on her imperiling her life or social status. 16. Both the accused persons by deceitful means induced the victim woman to go from Baripada to Nichuapada on the understanding that she should be provided with work in the house of one of their relatives. This amounts a clear case of abduction by both the accused persons. Further the victim woman was seduced or compelled to sexual intercourse by accused Biswanath. Accused Arati induced her to sleep with accused Biswanath and thereby she compelled her to have sexual intercourse with accused Biswanath. From the proximate of events, it appears that the fact of enticement which was the cause of abduction continued till the time of her intercourse by accused Biswanath with the victim woman. The victim woman was taken from Baripada to Nichuapada by inducing her to take her to one of their relatives to provide her some job. She was taken to Nichuapada I.B. and when she wanted to stay in the house of P.Ws. 3 and 4 during the night hours, she was dragged by accused Arati to the Inspection Bungalow and she induced her to have sexual intercourse with accused Biswanath during the night hours. Accused Biswanath by touching her body during the night hours, while she was sleeping a metress on the ground thereby induced P.W.2 to have sexual intercourse with her. In this manner the inducement continued from Baripada till illicit intercourse was committed by accused Biswanath on her. 17. On a careful consideration and analysis of the evidence of the prosecution brought on record, the events leading to the commission of rape, I arrive at the conclusion that accused Arati is liable U/sec. 366 of the Indian Penal Code or abduction of the victim women and compelling her to illicit intercourse with accused Biswanath and accused Biswanath is guilty of offence U/sec. 366 abducting the victim woman from Baripada to Nichuapada and committing rape on her in the Inspection Bungalow in the intervening night of 25/26-9-93. 18. As a result of the above, I hold the accused Biswanath Khamari guilty U/sec. 366/376 I.P.C. and convict him thereunder. I hold accused Arati Parida guilty U/sec. 366 I.P.C. and convict her thereunder. I do not hold accused Arati guilty U/sec. 376/109 I.P.C. and acquit her U/sec. 235(1) Cr. P.C. for the offence U/sec. 376/109 I.P.C.” 6. Being aggrieved by the judgment of conviction and order of sentence passed by the learned CJM-cum-Asst. Sessions Judge, Baripada, the present appeal has been preferred by the appellants. 7. Initially, both the appellants were charged for the offences under Sections 366/376/109 of the I.P.C. The prosecution, in order to substantiate its case, examined seven witnesses; however, none of the independent witnesses supported the prosecution case. Consequently, the case of the prosecution substantially rests upon the testimony of the prosecutrix (P.W.2) and her father (P.W.1), who is a post-occurrence witness. The charges framed against the accused persons were for the substantive offences under Sections 376/366 of the I.P.C. The appellant No.2, Arati Parida, has already been acquitted of the offence under Section 376 of the I.P.C., whereas appellant No.1, Biswanath Khamari, has been convicted for the offence under Section 376 of the I.P.C. besides the offence under Section 366 of the I.P.C. Therefore, it becomes necessary to analyse the evidence on record to ascertain the sustainability of the conviction recorded by the learned trial Court for the offence under Section 376 of the I.P.C., in so far as appellant No.1 is concerned. 8. P.W.2, the prosecutrix, in her testimony has stated that she was allured by the appellant No.2 with a promise to provide a job in her house, whereupon she was taken to the house of the said appellants. She has further stated that appellant No.2 asked her to go to some lodge to earn money. However, having understood the intention of appellant No.2, she immediately refused to indulge in such activity. She has also admitted that the appellant No.2 did not force her to go to the lodge on that night. However, the appellant No.2 persuaded her to go to Nichuapada village along with appellant No.1. Although she initially refused to accompany them, but somehow, she went with them to the said village, and on that night they stayed in a Dak Bungalow where they slept in one room. While narrating the incident of that night, she has stated in her testimony as under:- “xxxx xxxx xxxx I myself, Arati, and his son came to the private bus stand of Baripada town. I saw the accused Biswanath Khamari standing in the bus stand. Accused Biswanath paid for our bus ticket and we boarded in Bhai Bhai bus at about 12 noon. We got down at Nichuapada. I had no previous knowledge regarding Nichuapada and Arati told me the name of that locality as Nichuapada. We reached there at about 2.30 P.M. Accused Biswanath went to the Watchman of Dak Bungalow and brought the key. We went to Nichuapada Bungalow and Arati told me that tonight we would stay there. I refused to stay there. At about evening we took our meals there, in the quarter of Bunglow Choukidar. Accused Biswanath asked Arati to bring me to Dak Bungalow. I refused them to go to the Bungalow and to stay in the quarters of the Choukidar. Arati forcibly dragged me towards the Dak Bungalow and kept me in one of the rooms of the Bungalow. Prior to the reaching of our accused Khamari was sitting in that room. One of the metress was taken from the cot and kept on the ground. I asked to sleep on the metress in that room. Arati slept at a little distance with her son. Another old man slept in a little distance in that room. Accused Biswanath slept on the cot. A chungi was burning there. Accused Biswanath put it out. 4. Accused Biswanath wanted to rape me by touching my leg by his hands. I was screaming. The old man threatened me not to show by saying in case of shouting the Ghost would appear. I did not shout out of fear. Thereafter towards the end of the might, accused pulled out my saree up to my waist and penetrated his penis into my vagina and committed sexual intercourse without my consent and against my will. I raised hulla. Accused gagged my mouth by putting my saree. Accused Biswanath had also threatened me to kill me and my child in case of shouting. After omission of semen inside my vagina, accused went away and slept on the cot. Thereafter I had not slept. Thereafter Arati told me that you should stay one day more there and thereafter customers would come and pay money. I did not stay there. As I posed both the accused persons brought me to Baripada. Accused Biswanath got down from the bus at Traffic chhak and Arati took me to her house. I had gone to her house to bring clothes left in her house, while I was returning with clothes by crying, I met my parents on the road near the school. I narrated the entire incident of rape on me by the accused.” It is clear from the evidence of the prosecutrix that on that night when the alleged incident had taken place, she was sleeping in the room where along with the accused persons, an old man, namely, Hadibandhu Patabandha was also sleeping. The said old man has been examined in this case as P.W.5. The testimony of P.W.5 assumes much importance so as to appreciate the evidence of the prosecutrix in so far as the commission of the offence under Section 376 of I.P.C. is concerned. P.W.5, in his testimony, has stated that at the time of the alleged incident, he was sleeping at Nichuapada in the same room of the I.B., where the accused and the victim were sleeping. He further stated that the two accused persons, whom he identified in the dock, were also present in the I.B. on 25.09.1993. The son of the accused persons had also accompanied them. During that night, he, two accused persons and their son had slept in the I.B. in the same room. But, this witness has not whispered a word about the incident that alleged to have happened as per the prosecutrix version. The said witness was declared hostile and was subjected to cross-examination by the prosecution. In the cross- examination, although he denied the suggestion that the appellant No.1 has put off the light, therefore, he could not see anything. Nothing substantial could be derived from his evidence in support of the prosecution case. It sounds highly improbable and beyond the comprehensive that the offence of such grave nature happened in a room, where five persons are sleeping and none came to know about the same and no one even heard the screaming of the prosecutrix. 9. Neither the doctor, who alleged to have examined the prosecutrix nor the seizure of the articles in that regard has been examined in the present case. The saya and blouse, which were seized during the course of investigation and sent for chemical examination, could have thrown some light regarding the incident that might have happened on the night of 25.09.1993. However, the prosecutrix herself in paragraph-6 of her testimony, has stated as under:- “6. On police requisition I was examined by the doctor. Police seized my saree, saya and blouse worn by me at the time of commission of rape. (One saree, saya and blouse in this case are produced in the Court being brought from the Malkhana. But the witness denies that those sarees, saya and blouse were not worn by her at the time of commission of rape on her). I had gone to the hospital without wearing the saree, saya and blouse worn by me at the time of commission of rape on me.” Therefore, in so far as the incident that was alleged to have happened on the night of 25.09.1993 in the I.B. of Nichuapada is concerned, except the version of the prosecutrix, there is no other evidence either ocular evidence or documentary evidence supporting the case of the prosecution. No doubt, the ossification test reveals that the prosecutrix was about 25 years of age at the time of incident. However, the doctor’s report does not have any corroborative value of the testimony of the prosecutrix. The report of the laboratory examination of the cotton swab collected by the doctor from the vagina of the victim woman was found having no spermatozoa. The report of the chemical examiner also revealed that the saya contained patches of human semen but the saya which was sent back to the court by the State Forensic Science Laboratory has been discarded by the prosecutrix herself saying that the same she was wearing at the time of incident. Therefore, in order to sustain the charge under Section 376 of I.P.C., except the prosecutrix version, no other evidence is available on record in support of the prosecution to lend corroboration. The trustworthiness of the prosecution version so far as that incident is coming under the cloud of doubt in view of the overwhelming documentary evidence and the evidence of P.W.5. In such state of affairs and nature of weak evidence, sustaining the conviction for a grievous offence like Section 376 of I.P.C. in so far as the appellant No.1 is concerned, cannot be said to be safe. Therefore, the appellant No.1 is entitled to the benefit of doubt for the offence under Section 376 of I.P.C. Accordingly, the appellant No.1-Biswanath Khamari is acquitted of the charge under Section 376 of I.P.C. 10. Coming to the offence under Section 366 of the I.P.C., it is not only the evidence of the prosecutrix (P.W.2) but also the evidence of her father (P.W.1), who is a post occurrence witness as well as the evidence of P.Ws.3 and 4 assumes much importance. P.W.4 is the wife of the Choukidar of the Nichuapada I.B. She in her testimony has stated that she knew the accused persons. However, she had no acquaintance with the prosexutrix. She also deposed that about ten months back, both the accused persons had come to the I.B. at about 8 to 9 P.M. with the prosecutrix. She further deposed that the prosecutrix had accompanied the accused persons to their house. P.W.3 was the Choukidar of the Nichuapada I.B., who has stated that he knew both the accused persons. Both the accused persons along with their son had come to the I.B. on 25.09.1993. They reached the I.B. about 8 P.M. The accused persons requested him to stay in the I.B. Since the said witness did not support the prosecution in entirety, he was put to cross-examination by the defence and in the cross-examination, the suggestion made by the defence that he had not disclosed before the police that the prosecutrix had also accompanied with them have been denied. P.Ws.3, 4 and 5 have categorically stated that they had seen the accused persons along with their son during the night hours of 25.09.1993 at the house of P.W.3, who arranged a room for them in the I.B. It is a fact that these accused persons had gone to the I.B. of Nichuapada on the night of 25.09.1993. This aspect of the matter has been established on record beyond all reasonable of doubt. However, P.Ws.3 and 4 have conveniently tried to conceal the fact that the prosecutrix had also accompanied with them. There appears to be an obvious reason for such deposition. P.W.3 was the Choukidar of the I.B. of Nichuapada and P.W.4 is his wife. Both of them have accommodated the accused persons and the prosecutrix to stay in the I.B. on the night of the occurrence. So as to save themselves, they have deposed that the prosecutrix was not present. However, the evidence of P.W.1, the father of the prosecutrix and the deposition of P.W.5 stood corroborated with the evidence of the prosecutrix. P.W.1 has deposed that on 26.09.1993 at about 10 to 11 A.M, when he and his wife were going somewhere for work, they found their daughter (P.W.2) at Waliganj in front of the school. On enquiry, they came to know that she had left her husband, Rabindra Singh, in search of work and the appellant No.2 brought her on the pretext of arranging work for her. However, she was taken to Nichuapada I.B. where she was allegedly raped by the appellant No.1. The prosecutrix disclosed this fact to her parents. Immediately after knowing the incident, they went to Police Station and lodged the F.I.R which was registered on 26.09.1993 and has been exhibited as Ext.14. The I.O. (P.W.7) took up the investigation and sent the prosecutrix for medical examination at 8.30 A.M. on 26.09.1993. He also examined the father and mother of the victim during course of investigation. On 27.09.1993 at about 1.00 A.M., he seized all the wearing apparels of the victim, which have been exhibited as Ext.4. From the materials available on record, it is evident that there was absolutely no delay in registration of the F.I.R. Therefore, that part of the incident whereby the appellant had taken the prosecutrix to Nichuapada I.B., and staying with her there without her consent and will, despite her protest, is clearly established through the evidence of P.Ws.1, 2 and 5 as well as the documentary evidence brought on record. The learned trial Court has rightly appreciated the evidence in its proper perspective and has arrived at the conclusion that the appellants had induced the prosecutrix with an intention of compelling or forced her to have illicit intercourse, knowing to be likely that she would be forced or seduced or induced to engage in such unlawful intercourse. 11. In the light of the aforementioned discussion, the findings recorded by the learned trial Court in so far as the offence under Section 366 of I.P.C. is concerned, are held to be correct on facts and in law. Page 20 of 21 Accordingly, this Court upheld the conviction recorded against the appellants for the offence under Section 366 of I.P.C. As a consequence thereof, the appellants are accordingly liable to be sentenced to imprisonment of either description for a term which may extend to ten years and shall also be liable to pay fine, as provided under law. 12. At this stage, Ms. Banarjee, learned counsel appearing for the appellants, submitted that the incident relates back to the year 1993, at which point, the appellant No.1 was about 35 years of age and the appellant No.2 was about 30 years of age. At present, the appellant No.1 is aged about 68 years and the appellant No.2 is aged about 63 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 of the appellants may be modified. 13. Taking into account the entire circumstances of the case, and the gravity of the offence, the age of the appellants, the sentence awarded to the appellants deserves modification. Accordingly, the sentence awarded by the learned trial Court in line of the conviction for the offence under Section 366 of I.P.C. stands modified and the appellants are sentenced to undergo R.I. for a period of two years each and to pay a fine of Rs.5,000/- (Rupees five thousands) each, in default of payment of the fine amount, to undergo R.I. for a further period of one month. The period the appellants have already undergone shall be set off from the substantive sentence. The fine amount to be deposited by the appellants within a period of one month shall be disbursed to the victim (P.W.2) in accordance with the provision of Section 357 Cr.P.C. 14. Accordingly, the CRA is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 17th March, 2026/ Swarna