Page 1 IN THE HIGH COURT OF ORISSA AT CUTTACK CRLLP No.80 of 2008 (In the matter of an appeal under Section 378 (1) & (3) of the Code of Criminal Procedure, 1973). State of Orissa …. Appellant (s) -versus- Damodar Sahu …. Respondent (s) Advocates appeared in this case through Hybrid Arrangement Mode: For Appellant (s) : Mr. Sonak Mishra, Adv. For Respondent(s) : Mr. Tarakanta Nanda, Adv. CORAM: DR. JUSTICE SANJEEB K PANIGRAHI DATE OF HEARING: -16.04.2026 DATE OF JUDGMENT: -15.05.2026 Dr. Sanjeeb K Panigrahi, J. 1. The Petitioner–State has challenged the legality of the judgment and order dated 17.01.2008 passed by the learned Sessions Judge-cum- Special Judge, Sundargarh in S.T. Case No. 245 of 2003, whereby the learned trial court acquitted the accused–Respondent of the charges under Sections 376 and 417 IPC read with Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. I. FACTUAL MATRIX: 2. The prosecution case is that in the month of July, 2000, the accused– Respondent called the victim to his house for carrying out household work. Accordingly, the victim, along with two other girls, went to his Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-May-2026 18:56:53 Signature Not Verified Page 2 house. While they were engaged in such work, the accused, in the presence of the said girls, dragged the victim into a room and forcibly committed rape on her. Out of fear, the victim could not raise any alarm and returned home after the incident. It was further alleged that, after some days, the accused developed an intimate relationship with the victim and she also started meeting him. On several occasions thereafter, they established physical relationship. In the course of such relationship, the victim became pregnant. Upon being informed, the accused assured her not to worry and promised to maintain her throughout her life. 3. On 03.03.2001, the matter came to the knowledge of the father of the victim, who thereafter placed it before the family members of the accused. Subsequently, when the accused left the village, the victim lodged the F.I.R. at Kinjirkela Police Station. 4. Upon completion of investigation, charge-sheet was submitted against the accused for commission of offences under Sections 376 and 417 IPC read with Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 5. In order to prove its case, the prosecution examined eighteen witnesses, whereas the defence examined one witness. 6. Upon hearing the parties, the learned Sessions Judge-cum-Special Judge, Sundargarh found that the prosecution had failed to establish the charges under Sections 376 and 417 IPC read with Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-May-2026 18:56:53 Signature Not Verified Page 3 Atrocities) Act, 1989, and accordingly acquitted the accused of the said charges. 7. Being aggrieved by the said judgment and order dated 17.01.2008 passed by the learned Sessions Judge-cum-Special Judge, Sundargarh in S.T. Case No. 245 of 2003 arising out of Kinjirkela P.S. Case No. 10 of 2001, the prosecution has preferred the present application seeking leave to appeal. II. SUBMISSIONS OF THE APPELLANT: 8. Learned counsel for the appellant Mr. Sonak Mishra, ASC made the following submissions in support of his contentions: i. It was contended that the impugned judgment passed by the learned trial court is illegal and contrary to the evidence on record, and as such is liable to be set aside by this Court. ii. It was submitted that in the present case, the intention of the accused from the beginning was not honest, and he kept on promising that he would marry her till she became pregnant, and such consent cannot be said to be valid consent because she was under a misconception of fact that the accused intended to marry her, she being of tender age and just above 16 years. iii. The learned trial court acquitted the accused on the ground that there were some discrepancies in the prosecution evidence, and the learned trial court disbelieved the evidence regarding the love letters and observed that the admission register was suppressed by the investigating officer. However, the said love letters had no role to play in the case of the victim. Moreover, the accused, on the Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-May-2026 18:56:53 Signature Not Verified Page 4 pretext of marriage, had sexual intercourse several times till the victim became pregnant. iv. It was submitted that the law is well settled that in such cases, minor contradictions are not to be looked into by the learned trial court, as it is an offence against society, and the learned court should have strictly gone through the evidence of the prosecutrix. v. It was contended that in the present case, the evidence of the prosecutrix is cogent, specific, reliable and trustworthy and, therefore, based on such evidence and the material available on record, the learned trial court should have convicted the accused of the said offences. III. SUBMISSIONS OF THE RESPONDENT: 9. Per contra, learned counsel for the respondent Mr. Tarakanta Nanda made the following submissions in support of his contentions: i. It was submitted that the learned trial court rightly disbelieved the prosecution story on account of delay in lodging of the F.I.R. The alleged meeting was convened on 06.03.2001, whereas the F.I.R. was lodged on 31.03.2001 after a long gap. The trial court rightly discarded the prosecution story. ii. The prosecutrix, in her evidence before the Court, categorically stated that she herself had scribed the F.I.R., but on perusal of the F.I.R. and her admitted signature, it appears that the F.I.R. was written by some other person. The delay in lodging the F.I.R. has not been satisfactorily explained, and therefore the prosecution story Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-May-2026 18:56:53 Signature Not Verified Page 5 casts a shadow of doubt. The trial court rightly appreciated the evidence on record and discarded the prosecution story. iii. In the cross-examination of the prosecutrix, she could not state her date of birth and only guessed her age as 19 years. There is no allegation in the F.I.R. that the prosecutrix was a minor aged less than 16 years. With regard to age, the prosecutrix is stated to be 19 years old, and the medical evidence also substantiates the same. The prosecutrix and her parents (P.W.1 and P.W.3) also did not state that on the date of occurrence in the month of July, 2000, the prosecutrix was a minor. P.W.1, who is the mother of the prosecutrix, was unable to give the date of birth of the prosecutrix. P.W.3, who is the father of the prosecutrix, was silent about her date of birth. In the cause title of the deposition, her age is noted as about 19 years. iv. It was further submitted that the prosecutrix is said to be a student of Putudihi Primary School, and P.W.15 during the course of investigation stated to have seized the school admission register of Putudihi Primary School on production by the Assistant Teacher. The seizure list does not reflect the date of birth of the prosecutrix. v. It was submitted that the scribing of the F.I.R. also appears suspicious. The prosecutrix, in her evidence before the Court, categorically stated that she herself had scribed the F.I.R. and her admitted signature marked as Ext.4/1, but it appears that the F.I.R. was written by some other person and not by the prosecutrix. It is Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-May-2026 18:56:53 Signature Not Verified Page 6 also not known who scribed the F.I.R. The delay in lodging the F.I.R. has also not been satisfactorily explained. vi. It was submitted that a meeting was convened between the parents of the accused and the father of the prosecutrix. D.W.1 stated in examination-in-chief that the Sarpanch belongs to Birkaldihi while the prosecutrix belongs to Putudihi. He further stated that he does not remember the meeting between the family members of the accused and the victim. vii. The trial court rightly discarded the prosecution story while acquitting the accused. In the month of July, 2000, the accused called the prosecutrix for doing household work. The aforesaid facts were also taken into consideration by the trial court while disbelieving the prosecution story and passing the order of acquittal. viii. It was submitted that for an offence punishable under Section 376 IPC, the prosecution must first establish the ingredients constituting rape. Consent is a vital element in the offence of rape. In this regard, consent cannot be assumed based on silence, the absence of “no” or “stop”, the existence of a prior or current relationship, or prior activity. The accused is not obligated to lead evidence of his innocence unless the law specifically places the burden of proof on him. It was further submitted that the burden under Section 114A of the Evidence Act would arise only in accordance with law. ix. P.W.11 (Uttain Kumar Ghasi) deposed that he signed on Exhibit-6 (caste certificate marked Exhibit-6/1), and in cross-examination Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-May-2026 18:56:53 Signature Not Verified Page 7 P.W.11 deposed that the victim does not belong to his village and does not belong to his caste. The caste certificate was seized by P.W.15 (Bimbadhar Behera). x. It was submitted that the accused and the victim belong to different castes, which is a barrier to marriage. The prosecutrix and the accused, therefore, were aware that their family members would object to their marriage. In spite of that, they continued their love affair and had a sexual relationship with each other. xi. P.W.18, the I.O., and P.W.17 (Niranjan Dehury), who was DSP (Crime), Sundargarh, on 11.08.2001 took charge of investigation from S.I. Bimbadhar Behera (P.W.15), and P.W.15 had taken charge of investigation from S.I. J. Kalo (P.W.18). P.W.17 submitted the charge sheet against the accused on 13.08.2001. P.W.18, who was Officer-in-Charge of Kinjirekela Police Station, during the course of investigation examined the prosecutrix and other witnesses, seized four love letters written by the accused to the prosecutrix (Ext.-3), sent the prosecutrix for medical examination and obtained report, visited the spot, prepared spot map (Exhibit-12), seized vaginal swab and pubic hair of the prosecutrix, arrested the accused, got him medically examined, and handed over charge of investigation to S.I. B.D. Behera. P.W.15, in course of investigation, seized the school admission register relating to the prosecutrix (Ext.-7/1) and caste certificate (Exhibit-10) vide seizure list Ext.-8/1, and handed over charge to P.W.17 (Niranjan Dehury), who sent incriminating materials to F.S.L., Rasulgarh and on completion of investigation Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-May-2026 18:56:53 Signature Not Verified Page 8 submitted charge sheet. P.W.18, in cross-examination, stated that he does not know who scribed the F.I.R. and did not try to ascertain the same. He further stated that the victim was pregnant for about 8 months prior to the F.I.R., no other report was lodged by the victim or her parents against the accused, and the statement of the victim girl was neither recorded nor available on record. xii. It was submitted that the appeal has been filed beyond the period of limitation. The appeal has been filed after 115 days of the impugned order, whereas the prescribed period of limitation is 60 days. xiii. So far as the offences under Section 3(1)(xii) of the SC & ST Act are concerned, Rule 7 mandates that investigation shall be conducted by an officer not below the rank of DSP. In the present case, investigation was conducted by P.W.18, who was then attached to Kinjirekela P.S., and part of the investigation was done by P.W.15, who was then S.I. of Police. Based upon their investigation, P.W.17 (DSP, Sundargarh) submitted the charge sheet without conducting the major part of the investigation. Hence, the trial under Section 3(1)(xii) of the SC & ST (P.O.A.) Act is vitiated. xiv. The Respondent relied upon Uday v. State of Karnataka1, Deelip Singh @ Dilip Kumar v. State of Bihar2 in order to buttress his submissions. 1 2003 (4) SCC 46. 2 2005 SCC(CRI) 253. Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-May-2026 18:56:53 Signature Not Verified Page 9 xv. The Respondent relied upon Mallappa and Others v. State of Karnataka3, to assert that an appellate court should interfere with an order of acquittal only when the view taken by the trial court is perverse or unreasonable. It was further submitted that the presumption of innocence in favour of the accused gets strengthened once an order of acquittal is passed by the trial court. IV. FINDINGS OF THE SESSIONS JUDGE-CUM-SPECIAL JUDGE, SUNDARGARH 10. The learned Sessions Judge-cum-Special Judge, Sundargarh observed that it is a settled position of law that in a case of rape, the uncorroborated testimony of the prosecutrix, if found to be reliable and trustworthy, is sufficient to base a conviction. In light of the said principle, the learned trial court proceeded to scrutinize the evidence of the prosecutrix and the other materials available on record. 11. It was further observed that in a case of sexual assault upon a woman, consent becomes immaterial if the prosecutrix is found to be below 16 years of age. The learned trial court noted that there was no allegation in the F.I.R. that the prosecutrix was below 16 years of age and neither the prosecutrix nor her parents stated so in their evidence. The court further observed that the mother of the prosecutrix was unable to state her date of birth and the father remained silent regarding her age. The prosecutrix herself stated in cross-examination that she had guessed her age to be 19 years and might be 20 years old. 12. The learned trial court further held that though the prosecution relied upon the school admission register to establish the age of the 3 (2024) 3 SCC 544. Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-May-2026 18:56:53 Signature Not Verified Page 10 prosecutrix, the same was not duly proved in accordance with law, as no competent school authority was examined and the relevant entry relating to the date of birth of the prosecutrix was not brought on record. The court also observed that the medical examination report reflected the age of the prosecutrix to be 18 years as on 31.03.2001 and accordingly held that it could not be said that the prosecutrix was below 16 years of age on the date of occurrence. 13. Upon appreciation of the evidence of the prosecutrix, the learned trial court observed that though she alleged that the accused had forcibly taken her into a room in the presence of P.Ws.2 and 10 and committed rape upon her, the said witnesses did not support such version. The court further noted that the prosecutrix admitted in her cross- examination that after the first incident there was exchange of love letters between them, they used to meet at different places and continued to maintain physical relations with each other. 14. The learned trial court further observed that the F.I.R. did not contain any allegation that the accused had promised to marry the prosecutrix prior to establishing physical relationship with her and only mentioned that after she became pregnant, the accused assured her that he would maintain her throughout her life. The court also took note of the evidence of P.Ws.1 and 3, namely the parents of the prosecutrix, who stated that intimacy had developed between the prosecutrix and the accused while she was working in his house. 15. The learned trial court also observed that the investigating officer had stated that there existed a love affair between the prosecutrix and the Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-May-2026 18:56:53 Signature Not Verified Page 11 accused and that love letters were exchanged between them. However, though such letters were allegedly seized during investigation, the same were not brought on record before the Court. 16. It was further observed that the circumstances under which the F.I.R. was scribed also appeared suspicious inasmuch as the prosecutrix claimed to have written the same herself, whereas, upon comparison of the handwriting and signature, the court found that the F.I.R. appeared to have been written by some other person. The learned trial court further took note of the delay in lodging the F.I.R. and held that the same had not been satisfactorily explained. 17. The learned trial court also relied upon the medical evidence which revealed absence of injuries on the body of the prosecutrix and absence of any sign of recent sexual intercourse. It further observed that the medical examination was conducted long after the alleged occurrence. 18. Upon consideration of the evidence on record, the learned trial court held that the evidence of the prosecutrix was not wholly reliable and trustworthy and that the possibility of consensual relationship could not be ruled out. 19. So far as the offence under Section 3(1)(xii) of the SC & ST (P.O.A.) Act was concerned, the learned trial court observed that Rule 7 of the Rules mandates investigation by an officer not below the rank of DSP. It was held that major part of the investigation had been conducted by officers below the rank of DSP and the DSP had submitted charge-sheet without conducting substantial investigation himself. On such reasoning, the learned trial court held that the prosecution had failed to Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-May-2026 18:56:53 Signature Not Verified Page 12 establish the charges beyond reasonable doubt and accordingly acquitted the accused. V. COURT’S REASONING AND ANALYSIS: 20. Heard learned counsel for the parties and perused the material placed on record. 21. The present application has been filed seeking leave to appeal against the judgment of acquittal passed by the learned Sessions Judge-cum- Special Judge, Sundargarh in S.T. Case No.245 of 2003 whereby the accused–Respondent has been acquitted of the charges under Sections 376 and 417 IPC read with Section 3(1)(xii) of the SC & ST (P.O.A.) Act. 22. Before adverting to the merits of the submissions advanced on behalf of the parties, it would be apposite to examine the scope of interference by this Court in an application seeking leave to appeal against an order of acquittal. 23. The Supreme Court in State of Maharashtra v. Sujay Mangesh Poyarekar4 has held that while considering an application for leave to appeal against an order of acquittal under Section 378(3) Cr.P.C., the High Court is required to examine whether a prima facie case or arguable points have been made out warranting re-appreciation of evidence. It has further been held that though the appellate court is not expected to enter into minute details of the evidence at the stage of grant of leave, the Court must nevertheless apply its mind to the material on record and record reasons while refusing or granting leave. The relevant observations are reproduced hereinunder: 4 (2008) 9 SCC 475. Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-May-2026 18:56:53 Signature Not Verified Page 13 “19. Now, Section 378 of the Code provides for filing of appeal by the State in case of acquittal. Sub-section (3) declares that no appeal “shall be entertained except with the leave of the High Court”. It is, therefore, necessary for the State where it is aggrieved by an order of acquittal recorded by a Court of Session to file an application for leave to appeal as required by sub- section (3) of Section 378 of the Code. It is also true that an appeal can be registered and heard on merits by the High Court only after the High Court grants leave by allowing the application filed under sub- section (3) of Section 378 of the Code. 20. In our opinion, however, in deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider whether a prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside. 21. It cannot be laid down as an abstract proposition of law of universal application that each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by a trial court must be allowed by the appellate court and every appeal must be admitted and decided on merits. But it also cannot be overlooked that at that stage, the court would not enter into minute details of the prosecution evidence and refuse leave observing that the judgment of acquittal recorded by the trial court could not be said to be “perverse” and, hence, no leave should be granted. 24. We may hasten to clarify that we may not be understood to have laid down an inviolable rule that no leave should be refused by the appellate court against an order of acquittal recorded by the trial court. We only state that in such cases, the appellate court must consider the relevant material, sworn testimonies of prosecution witnesses and record Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-May-2026 18:56:53 Signature Not Verified Page 14 reasons why leave sought by the State should not be granted and the order of acquittal recorded by the trial court should not be disturbed. Where there is application of mind by the appellate court and reasons (may be in brief) in support of such view are recorded, the order of the court may not be said to be illegal or objectionable. At the same time, however, if arguable points have been raised, if the material on record discloses deeper scrutiny and reappreciation, review or reconsideration of evidence, the appellate court must grant leave as sought and decide the appeal on merits. In the case on hand, the High Court, with respect, did neither. In the opinion of the High Court, the case did not require grant of leave. But it also failed to record reasons for refusal of such leave.” 24. Keeping in view the aforesaid settled principles, this Court has carefully examined the evidence adduced by the prosecution, the findings recorded by the learned trial court and the submissions advanced on behalf of the parties. 25. The principal question which arises for consideration in the present case is whether the findings recorded by the learned trial court while acquitting the accused–Respondent suffer from perversity, illegality or mis-appreciation of evidence so as to warrant interference by this Court in exercise of jurisdiction under Section 378 Cr.P.C. 26. The learned trial court, upon appreciation of the evidence on record, came to the conclusion that the prosecution failed to establish that the prosecutrix was below 16 years of age at the time of occurrence. The learned trial court observed that there was no allegation in the F.I.R. regarding the prosecutrix being a minor and neither the prosecutrix nor her parents stated her exact date of birth during trial. The trial court Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-May-2026 18:56:53 Signature Not Verified Page 15 further found that though reliance was placed upon the school admission register, the same was not duly proved in accordance with law and no competent witness was examined to establish the relevant entry relating to the date of birth of the prosecutrix. 27. This Court, upon perusal of the evidence available on record, finds no perversity in the aforesaid finding recorded by the learned trial court. The prosecutrix in her cross-examination admitted that she was unable to state her date of birth with certainty and stated her age to be around 19 years. P.Ws.1 and 3, namely the parents of the prosecutrix, also failed to state her date of birth. Furthermore, the medical evidence assessed the age of the prosecutrix to be around 18 years as on the date of examination. In such circumstances, the finding of the learned trial court that the prosecution failed to conclusively establish that the prosecutrix was below 16 years of age cannot be said to be unreasonable or contrary to the evidence on record. 28. The learned trial court further observed that after the alleged initial incident, intimacy developed between the prosecutrix and the accused and both continued to remain in a physical relationship over a considerable period of time. The learned trial court also took note of the evidence regarding exchange of love letters and meetings between them at different places. It was further observed that the F.I.R. did not contain any allegation that the accused had induced the prosecutrix into a physical relationship by giving a false promise of marriage from the very inception. Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-May-2026 18:56:53 Signature Not Verified Page 16 29. Upon consideration of the materials available on record, this Court finds that the aforesaid observations of the learned trial court are borne out from the evidence adduced during trial. The evidence of the prosecutrix itself indicates that the relationship between the parties continued for a considerable period of time. Furthermore, the allegation in the F.I.R. is primarily to the effect that after the prosecutrix became pregnant, the accused assured her that he would maintain her throughout her life. In such circumstances, the view taken by the learned trial court that the possibility of a consensual relationship could not be ruled out cannot be said to be either perverse or wholly unsupported by the evidence on record. 30. The learned trial court also took note of the fact that P.Ws.2 and 10 did not support the allegation regarding forcible commission of rape in their presence. The medical evidence also did not reveal any injury on the body of the prosecutrix suggestive of forcible sexual intercourse. Apart from the same, the learned trial court considered the delay in lodging the F.I.R. and the suspicious circumstances surrounding the scribing of the F.I.R., particularly when the prosecutrix claimed to have written the same herself whereas the handwriting therein appeared different from her admitted signature. 31. This Court finds that the learned trial court considered the evidence available on record in its proper perspective and assigned cogent reasons while extending benefit of doubt to the accused–Respondent. It is well settled that where two views are reasonably possible on the basis of the evidence on record, the appellate court should be slow in Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-May-2026 18:56:53 Signature Not Verified Page 17 interfering with an order of acquittal unless the findings recorded by the trial court are manifestly illegal or perverse. 32. So far as the offence under Section 3(1)(xii) of the SC & ST (P.O.A.) Act is concerned, the learned trial court observed that substantial part of the investigation had been conducted by officers below the rank of DSP though Rule 7 mandates investigation by an officer not below the rank of DSP. The learned trial court took the said aspect into consideration while assessing the sustainability of the prosecution case under the provisions of the said Act. VI. CONCLUSION: 33. Upon appreciation of the evidence available on record and the reasons assigned by the learned Sessions Judge-cum-Special Judge, Sundargarh, this Court is of the considered view that the findings recorded by the learned trial court do not suffer from perversity, illegality or mis-appreciation of evidence warranting interference in exercise of jurisdiction under Section 378 Cr.P.C. 34. Accordingly, this Court is not inclined to grant leave to appeal. The CRLLP stands dismissed. 35. Interim order, if any, passed earlier stands vacated. (Dr. Sanjeeb K Panigrahi) Judge Orissa High Court, Cuttack, Dated the 15th May, 2026/-