THE HIGH COURT OF ORISSA AT CUTTACK CRA No.94 of 1994 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Ramesh Sriram @ Ramesh ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Abhas Mohanty, Amicus Curiae For the Respondent : Mr. Partha Sarathi Nayak, Additional Government Advocate CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 30.04.2026 :: Date of Judgment: 22.05.2026 S.S. Mishra, J. The present Criminal Appeal is directed against the judgment and order dated 10th February, 1994 passed by the learned Assistant Sessions Judge, Rourkela in Sessions Trial Case No. 3/2 of p. 2 1993, whereby the appellant was convicted under Sections 366 and 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for eight years and to pay a fine of Rs.5,000/- on each count, and in default of payment of fine, the appellant is further sentenced to undergo R.I. of three months on each count. 2. The present appeal has been pending since 1994. When the matter was called for hearing continuously, none appeared for the appellant. Therefore, on 15.01.2026, this Court requested Mr. Abhas Mohanty, learned counsel, who was present in Court to assist the Court as Amicus Curiae. He has readily accepted and after obtaining the entire record assisted the Court very effectively. This Court records appreciation for the meaningful assistance rendered by Mr. Mohanty. 3. Heard Mr. Abhas Mohanty, learned Amicus Curiae for the appellant and Mr. Partha Sarathi Nayak, learned Additional Government Advocate for the State. Page 3 of 11 4. The prosecution case, in brief, is that the victim girl (P.W.3), a student of Class-VIII in Fertilizer High School, Rourkela, aged about 14 years, went to school on 23rd March, 1992, but did not return home. After search, it was learnt that the accused had taken her to village Chhapra in the District of Srikakulam, Andhra Pradesh. Subsequently, she was recovered from the house of the accused. The allegation of the prosecution is that the accused kidnapped the minor girl from lawful guardianship and thereafter forcibly married and committed sexual intercourse with her against her will. 5. Upon completion of investigation, charge-sheet was submitted against the appellant for the alleged commission of the offences under Sections 366 and 376 IPC. The case was committed to the Court of Sessions. On the denial stance of the appellant and his claim to defend, he was put to trial. 6. The prosecution, in order to substantiate its case, examined all twelve witnesses. Among them, P.W.3 is the victim girl, whose testimony formed the foundation of the prosecution case. P.W.1 and p. 4 P.W.10 are the mother and father of the victim respectively, supporting the allegations relating to her age and disappearance. P.W.2 was a neighbour, who accompanied the victim’s mother to Andhra Pradesh in search of the girl. P.Ws.4 and 5 were school authorities connected with the seizure of the school admission register. P.Ws.7, 8 and 11 were medical experts, including the radiologist who conducted the ossification test to determine the age of the victim. P.W.12 was the Investigating Officer, who conducted the investigation and submitted the charge-sheet. The remaining witnesses were formal or seizure witnesses. On the side of the defence, only one witness was examined. 7. The learned trial court, upon appreciation of the oral and documentary evidence, came to the conclusion that the prosecution had successfully proved that the victim was below eighteen years of age at the time of occurrence and that she had been taken away by the accused from the lawful guardianship of her parents. The court placed substantial reliance on the testimony of the prosecutrix, holding it to be credible and trustworthy, and further observed that her evidence did not suffer from p. 5 any material contradictions. It also held that the delay in lodging the FIR was satisfactorily explained considering the social stigma attached to such offences. Accepting the version of the prosecution in its entirety, the trial court found the accused guilty under Sections 366 and 376 IPC and convicted him accordingly. The relevant portion of the aforesaid judgment is extracted herein below for ready reference:- “15. Considering the evidence of F.W.8 which is based on Exts.10 to 13 and his report under Ext.9 regarding the age of the victim girl (P.W.3) I find that P.W.8 has ascertained the age of the victim girl (P.W.3) to be in between 15 to 17 years. The evidence of P.W.1, P.W.10 and the statement of P.Ws. 1 and 3 which are recorded under section 164 of Cr.P.C. by the S.D.J.M. Panposh also corroborate the finding of Sri N.C.Patel, Specialist in Radiology (P.W.8) of District Headquarters Hospital, Sundargarh regarding the ascertainment of the age of the victim girl (P.W.3). From the evidence of P.Ws.1, 10 and the statements recorded under section 164 of the Cr.P.C. of P.Ws. 1 to 3 by the S.D.J.M., Panposh and the evidence of P.W.8, which is based on X-Ray plates which are marked under Exts. 10 to 13 and from the ossification report under Ext.9; I find that the age of the victim girl was in between 15 to 17 years on 23rd day of March, 1992 and there is no doubt about the fact the victim girl P.W.3 was under 18 years on the date of occurrence, i.e. 23.3.92. Page 6 of 11 16. Since P.W.3 is the victim and prosecutrix and is a solitary witness to the occurrence, I have carefully scrutinized her evidence and I find that her evidence could not be demolished in cross- examination at length. P.W.3 the victim girl has with stood the cross-examination well and she had disclosed in her evidence that the accused forcibly kidnapped her from the Fertilizer High School premises and married her without her consent. She being alone at village Chhapara in District- Srikakullam (Andhra Pradesh), she could not resist the marriage. It is also disclosed from the evidence of P.W.3 that the accused committed rape on her by having sexual inter course with her two to three days after the kidnapping and that the accused committed sexual intercourse with her without her consent and that the accused inserted his penis inside her vagina and had committed similar act of intercourse with her for a period of one month on every night by doing other overt- acts. xxxx xxxx xxxx 24. In the result, in view of the aforesaid analysis of the evidence of P.W.3 (victim girl) and P.W.8 Dr. N.C. Patel (Specialist in Radiology) I find that the prosecution has well proved its case against the accused Ramesh Sriram @ Ramesh under sections 366/376 of the Indian Penal Code beyond all reasonable doubts and I hold the accused guilty under sections 366/376 of the Indian Penal Code and convict him thereunder.” p. 7 8. 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 on record. 9. The evidence of P.W.3, the prosecutrix, reveals that she alleged the accused had forcibly taken her from the school premises and thereafter married and subjected her to repeated sexual intercourse against her will at village Chhapra. However, her testimony, particularly in cross-examination, discloses certain inconsistencies and improbabilities regarding resistance, surrounding circumstances, and her conduct during the period of stay with the accused. While her version supports the allegation of taking away, the same does not inspire complete confidence so far as the charge of rape is concerned, without independent corroboration. Page 8 of 11 10. Upon a comprehensive reappraisal of the evidence on record, this Court finds that the conviction recorded by the learned trial court under Section 376 IPC is not sustainable in law. The medical evidence assumes critical significance in this regard. P.W.11, the Assistant Surgeon, who examined the victim on police requisition, categorically stated that the secondary sexual characteristics of the victim were well developed; however, there were no injuries on her body or private parts, no foreign materials such as semen or pubic hair were detected, and significantly, the hymen was found to be intact. The vaginal examination revealed that insertion of one finger was possible with difficulty, and microscopic examination of the vaginal swab did not detect the presence of spermatozoa. Extract of P.W.11’s testimony is profitable to be reproduced for true appreciation: “On 4-5-92 I was Asst. Surgeon, RGH, Rourkela. On that day on police requisition, I examined one Suchitra Minz, d/o. Ignes Minz at 10.30 A.M and found secondary sexual character well developed. There is no injury on her body or private parts. p. 9 2. No foreign materials like semen, stain or pubic hair found in her body or private parts. 3. Vagina allows one finger with difficulty. Hymen is intact. No sign of any venerel disease found. 4. Vaginal swab obtained, microscopical examination of vaginal swab shows presence of vaginal epithelial cells. No spermatozoa found. Vaginal swab preserved.” These findings do not corroborate the allegation of repeated forcible sexual intercourse for over a month, as alleged by the prosecution and extracted from the prosecutrix's evidence. Accordingly, the charge under Section 376 IPC is held not to have been proved beyond reasonable doubt. 11. However, insofar as the offence under Section 366 IPC is concerned, the evidence on record clearly establishes that the victim was below 18 years of age and was taken away from the lawful guardianship of her parents by the accused. The testimony of the prosecutrix, duly supported by her parents and the evidence of P.Ws.2, 4 and 5 besides the circumstances of her recovery from a distant place in another State, proves that the accused had taken her from the school premises and p. 10 removed her from the custody of her lawful guardians. Even if some degree of acquiescence is assumed, the same is immaterial in the case of a minor for the purpose of the said offence. Therefore, the conviction of the appellant under Section 366 IPC is affirmed. 12. On the question of sentence, it is not disputed that the appellant has already undergone a period of about eight months of incarceration. Considering the facts and circumstances of the case, and the passage of time since the occurrence, this Court is of the view that the ends of justice would be adequately met by modifying the sentence under Section 366 IPC to the period already undergone. Accordingly, while setting aside the conviction under Section 376 IPC, the conviction under Section 366 IPC is maintained, and the sentence is reduced to the period already undergone by the appellant. 13. With the above modification in sentence, the Criminal Appeal stands partly allowed. Page 11 of 11 14. This Court acknowledges the effective and meaningful assistance rendered by Mr. Abhas Mohanty, learned Amicus Curiae in this case. Learned Amicus Curiae is entitled to an honorarium of Rs.7,500/- (Rupees seven thousand five hundred) to be paid as a token of appreciation. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 22nd Day of May, 2026/ Subhasis Mohanty Designation: Personal Assistant Location: High Court of Orissa, Cuttack. Date: 25-May-2026 20:33:04