THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.421 of 2006 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Susanta Barik ……. Appellant -Versus- State of Odisha ……. Respondent For the Appellant : Mr. Pranay Kumar Maharaj, Amicus Curiae For the Respondent : Mr. Sobhan Panigrahi, Additional Standing Counsel CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 12.05.2026 :: Date of Judgment: 22.05.2026 S.S. Mishra, J. The present Criminal Appeal is directed against the judgment and order dated 21.08.2006/12.09.2006 passed by the learned Special Judge, Keonjhar, in Special Case No.1 of 2000, whereby the appellant has been convicted for the offence under Section 376 read with Section 511 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years. However, the appellant has been acquitted of the charge under Section 3(2)(v) of the SC & ST (Prevention of Atrocities) Act. 2. The present appeal has been pending since 2006. Whenever the matter was called for hearing, continuously, none appeared for the appellant. Therefore, on 24.07.2025, this Court requested Mr. Pranay Kumar Maharaj, 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. Maharaj. 3. Heard Mr. Pranay Kumar Maharaj, learned Amicus Curiae for the appellant and Mr. Sobhan Panigrahi, learned Additional Standing Counsel for the State. Page 3 of 14 4. The prosecution case, in brief, is that on the evening of 04.01.2000, the victim was alone in her house as her son had gone outside. At that time, the appellant-accused, namely Susanta Barik, allegedly came to the house of the victim and enquired about her son. After being informed that her son was absent, the accused sat on the verandah of the house and thereafter asked the victim to sell a hen to him. When the victim entered the house to show the hen, the accused allegedly followed her inside, forcibly caught hold of her, threw her on the floor and attempted to pull her saree with the intention to commit rape upon her. It was further alleged that the accused pressed her mouth in order to prevent her from raising alarm. However, the victim resisted and raised hullah, hearing which nearby villagers rushed to the spot. On seeing the villagers approaching, the accused allegedly fled away from the place of occurrence. 5. Thereafter, the victim disclosed the incident before the villagers who had assembled near her house. On the basis of the report lodged in connection with the occurrence, Champua P.S. Case No.3 of 2000 corresponding to G.R. Case No.3 of 2000 was registered and investigation was taken up. Upon completion of investigation, charge- sheet was submitted against the accused for commission of offences punishable under Sections 376/511 of the Indian Penal Code and Section 3(2)(v) of the SC & ST (Prevention of Atrocities) Act. The case was committed to the Court of learned Special Judge, Keonjhar for trial. 6. During trial, the prosecution examined six witnesses including the victim as P.W.1. P.Ws.2 to 6 were examined as post-occurrence witnesses who claimed to have reached the spot after hearing the cries of the victim. The defence plea was one of complete denial and false implication. No evidence was adduced on behalf of the defence. 7. The learned trial court, upon appreciation of the oral and documentary evidence, came to hold that the testimony of the victim was trustworthy and reliable. Her evidence received corroboration from the post-occurrence witnesses, namely P.Ws.2 to 6, who stated that immediately after the occurrence the victim disclosed before them that the accused had attempted to rape her. The learned trial court observed that the conduct of the accused in entering into the house of the victim, throwing her on the floor, pulling her saree and pressing her mouth clearly established the intention to commit rape and constituted an attempt punishable under Section 376 read with Section 511 IPC. While dealing with the objection regarding non-examination of the Investigating Officer, the learned trial court held that no prejudice had been caused to the defence and such omission was not fatal to the prosecution case. The learned trial Court further held that although the victim belonged to the Scheduled Caste community, there was no material to establish that the offence was committed on the ground of caste and accordingly acquitted the accused of the charge under Section 3(2)(v) of the SC & ST (P.A.) Act. Ultimately, the accused was convicted under Section 376/511 IPC and sentenced accordingly. The relevant portion of the aforesaid judgment is extracted herein below for ready reference:- “9. In the case in hand the evidence reveal that the accused went to the house to enquire about the son of the victim and when he was found absent, he entered the house on the pretext of collecting the hen. This fact shows that the accused made preparation to do an act and the act that he caught hold of her on the ground and tried to pull her saree by closing her mouth shows his intention to rape but he could not do the same as the victim struggled and raised hullah. The evidence clearly shows that the accused attempted to commit the rape. 10. It is contended that the non examination of the I.O. is fatal to the prosecution case. It is true that the I.O. has not examined in this case as his whereabouts could not be ascertained. The I.O. is generally examined to prove the contradictions or to prove the fact he is noticed at the time of spot visit. The only contradiction brought out in the evidence of P.W. 1 in that he had not stated to I.O. that he reported the matter on the same day. This contradiction is very minor in nature and in no way sufficient to cause prejudice to the accused. Nothing was suggested to other witnesses i.e. P.Ws. 2 to 6 to the effect that they gave a different version before the I.O. In such circumstances the non examination of the I.O. in no way affect the case of the prosecution. In the decision reported in 1994 Vol.2 Crime Orissa Page 1008 Ashok Kumar Jena Vs. State Their Lordship held that; "Unless it is shown by the accused that no was prejudiced by non examination of I.O. the prosecution case does net get affected". Page 7 of 14 11. It is further contended that as per rule 7 of the S.C. the offence u/s.3 of the Act has to be investigated by the officer of the rank of S.D.P.O. But in this case the S.I. investigated the case and placed the charge sheet. It is true that the S.D.P.O. is not the I.O. of this case but it is not disputed that the S.I. is competent to investigate the offence under I.P.C. In the decision reported in 2003 Vol. 24 O.C. Page 135 Maheswar Panda Vs. State their Lordship held that, The offences complained are both under I.P.C. and any of the offence enumerated u/s.3 of the Act, then the investigation which is being made by a competent police officer in accordance with the provision in Cr.P.C. cannot be and should not be quashed. 12. The evidence on record does not indicate that the alleged offence occurred on the basis of caste. So the evidence is not sufficient to attract the Section 3(2)(v) of the S.C. & S.T. (PA) Act as held by their Lordship in the decision reported in 2006 vol.I crime(S.C.) page 247 Dinesh Vs. State of Rajstan. 13. From the discussion made above the prosecution has proved its case against the accused u/s.376/511 I.P.C and the accused is found guilty thereunder. But the prosecution has failed to prove its case against the accused u/s.3(2)(v) of the S.C. & S.T. (PA) Act. Therefore the accused is found not guilty u/s.3(2)(v) of the S.C. & S.T. (PA) Act and acquitted therefrom.” 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, and the documents produced on record. 9. The prosecution principally rests upon the testimony of P.W.1, the victim. She has stated that the accused entered into her house, caught hold of her, threw her on the floor and attempted to pull her saree while pressing her mouth. P.Ws.2 to 6 are post-occurrence witnesses who claimed to have arrived after hearing hullah and stated that the victim narrated the occurrence before them. However, upon deeper scrutiny, this Court finds substantial deficiencies in the prosecution case which go to the root of the matter. The learned trial court appears to have proceeded on the premise that since the accused entered the house and attempted to pull the saree of the victim, the intention to commit rape necessarily stood established. Such inference, in the considered opinion of this Court, is not supported by the legal standard required for sustaining a conviction under Section 376/511 IPC. Criminal jurisprudence mandates that suspicion, however strong, cannot substitute proof beyond reasonable doubt. In the instant case, the prosecution evidence lacks the essentials necessary to infer the commission of an offence under Section 376/511 IPC. There is no medical examination report indicating any injury suggestive of violent sexual assault. There is also no seizure of torn clothes or any other corroborative material. The prosecution has likewise failed to explain why no such medical evidence was adduced despite the allegation of forcible assault. 10. The Investigating Officer has not been examined in the present case. The prosecution explanation that his whereabouts could not be ascertained cannot dilute the prejudice caused to the accused. The defence was deprived of the valuable right to confront the Investigating Officer with regard to the manner of investigation, the place of occurrence, contradictions and omissions in the statements of witnesses recorded under Section 161 Cr.P.C., seizure, preparation of documents and other material circumstances. It is well settled that non-examination of the Investigating Officer may not be fatal in every case, but where the case suffers from material inconsistencies and the defence is prejudiced in proving contradictions, such omission assumes significance. In the present case, the prosecution evidence is not of such unimpeachable quality so as to render the non- examination of the Investigating Officer inconsequential. 11. Even more importantly, though the prosecution appears to have relied upon a medical report marked as Ext.3, the doctor who allegedly examined the victim was never brought to the witness box. The medical report was not proved in accordance with the Evidence Act. There is complete ambiguity as to through whom Ext.3 has been introduced into evidence. The record does not reveal any lawful foundation for exhibiting the said document. The Supreme Court in L.I.C. of India & Anr. vs Ram Pal Singh Bisen, reported in 2010 (4) SCC 491, reiterated that mere admission or exhibition of a document does not amount to proof of its contents unless proved in accordance with the Evidence Act. It was held thus:- “31. Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the Court. Contents of the document cannot be proved by merely filing in a court.” 12. A medical report cannot automatically become substantive evidence merely because it is found in the case record. Unless the author thereof is examined, or the document is otherwise proved in accordance with law, the same cannot be read into evidence. In criminal jurisprudence, particularly in cases involving allegations of sexual assault or attempt thereof, medical evidence often assumes corroborative significance. In the present case, the prosecution not only failed to examine the doctor but also failed to legally prove the medical report. Page 12 of 14 The learned trial court, while relying upon Ext.3, overlooked this fundamental defect. A document which has not been duly proved cannot be relied upon for recording conviction. The evidentiary value of such an unproven document is virtually nil. 13. Further, there is no evidence regarding any injury to the person of the victim except the oral assertion of some witnesses that they saw injury marks. In absence of medical evidence duly proved before the Court, such statements remain uncorroborated. 14. The evidence available on record, viewed cumulatively with the serious procedural lapses, creates a reasonable doubt regarding the prosecution case. The settled principle of criminal law is that suspicion, however strong, cannot take the place of proof. The burden always lies upon the prosecution to establish the guilt of the accused beyond all reasonable doubt. It would be apt to rely on the judgment of the Honourable Supreme Court in Pradeep Kumar v. State of Chhattisgarh, reported in (2023) 5 SCC 350, where it was held thus:- “27. It is important to note that the cardinal principles in the administration of criminal justice in cases where heavy reliance is placed on circumstantial evidence, is that where two views are possible, one pointing to the guilt of the accused and the other towards his innocence, the one which is favourable to the accused must be adopted. [Kali Ram v. State of H.P. [Kali Ram v. State of H.P., (1973) 2 SCC 808: 1973 SCC (Cri) 1048] ].” 15. In the present case, non-examination of the Investigating Officer, non-examination of the doctor, failure to legally prove the medical report and ambiguity regarding the exhibition of Ext.3 cumulatively create serious infirmities in the prosecution case. Such deficiencies assume greater significance when the conviction is founded substantially upon solitary testimony unsupported by legally admissible corroborative evidence. Even if the oral testimonies of all the prosecution witnesses are stretched in favour of the prosecution, singular view cannot be drawn. Possibility of secondary view tilts in favour of the appellant, hence it should be favourably disposed towards the accused. 16. This Court is therefore of the considered view that the prosecution has failed to prove the charge under Section 376/511 IPC against the appellant beyond reasonable doubt. The appellant is entitled to the benefit of doubt. The judgment of conviction and order of sentence dated 21.08.2006/12.09.2006 passed by the learned Special Judge, Keonjhar, in Special Case No.1 of 2000 is hereby set aside. 17. Accordingly, the Criminal Appeal is allowed. 18. This Court acknowledges the effective and meaningful assistance rendered by Mr. Pranay Kumar Maharaj, 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 20:33:05