Orissa High Court
Criminal Procedure Code vs State Of Odisha on 25 June, 2026
Author: Sanjeeb K Panigrahi
Bench: Sanjeeb K Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT,
CUTTACK
Date: 08-Jul-2026 17:14:15
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No. 489 of 2023
and
CRLA No.483 of 2023
(In the matter of applications under Section 415(2) of Bharatiya
Nagarik Suraksha Sanhita, 2023 corresponding to Section 374(2) of
Criminal Procedure Code, 1973).
Pramod Bariha .... Appellant (s)
(In CRLA No.489 of 2023)
Abhilash Bariha @ Bariha
(In CRLA No.483 of 2023)
-versus-
State of Odisha .... Respondent (s)
Advocates appeared in the case throughHybrid Mode:
For Appellant (s) : Mr. Dipti Ranjan Swain, Adv.
Mr. S.S. Ray (2), Adv.
For Respondent (s) : Ms. Gayatri Patra, ASC
CORAM:
DR. JUSTICE SANJEEB K PANIGRAHI
DATE OF HEARING:-08.04.2026
DATE OF JUDGMENT:-25.06.2026
Dr. Sanjeeb K Panigrahi, J.
1. Since both the CRLAs arise out of the same factual background and
involve the same issue, those were heard together and are being
disposed of by this common judgment.
2. In both the above-mentioned Criminal Appeals, the Appellants seek a
direction from this Court to set aside the judgment of conviction and
sentence passed by the learned Special Judge, Bolangir, challenging
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the POCSO conviction, the finding of minority, and the reliance
placed on the prosecutrix’s testimony.
I. FACTUAL MATRIX OF THE CASE:
3. The brief facts of the case are as follows:
(i) On the night of 03.04.2016, when the parents of the victim were
away from village Salebarat, accused Abhilash Bariha visited
her house in the evening on the pretext of purchasing a hen and
paid Rs. 200/- for it. Later that night between 9 and 10 PM, both
accused Pramod Bariha and Abhilash Bariha returned on the
same pretext, and upon the victim opening the door, Abhilash
caught hold of her, gagged her mouth, pulled and dragged her,
and both accused together lifted and carried her to Gidhghar
Pahada, a hillock near the village.
(ii) The victim was kept confined at GidhgharPahada from the night
of 03.04.2016 until the morning of 05.04.2016, spanning two
nights and one day. During this period, both accused allegedly
tied her, denied her food throughout, and repeatedly committed
rape on her. On the morning of 05.04.2016, the accused brought
her down from the Pahada and abandoned her near her house,
whereafter she disclosed the entire incident to gathered villagers
and subsequently to her parents, police, and the Magistrate.
(iii) The father of the victim, Dambarudhar Sahu (PW-1), lodged an
FIR on 04.04.2016 at Sindhekela PS stating that his minor
daughter had gone missing from the house and that gold
ornaments worth about one and a half bhari were also missing.
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He suspected kidnapping by someone who had seduced her.
The police registered PS Case No. 71/2016 under Section 363
IPC, and after investigation, submitted chargesheet on
05.07.2016 under Sections 363, 366, 376(D) IPC and Section 6 of
the POCSO Act. The Special Court framed charges on 08.03.2017
under Sections 363, 366, 376(D), 376(2)(n) IPC and Sections 6 and
10 of the POCSO Act.
(iv) The prosecution examined 18 witnesses in total. PW-2 is the
victim and sole eyewitness. PW-1 and PW-3 are her father and
mother who deposed about receiving telephonic news of her
disappearance and what the victim disclosed upon her return.
PW-4 and PW-5 are co-villagers who heard the account from the
victim herself when she was abandoned near her house. PW-7
and PW-12 are medical officers who examined the two accused
respectively, found them potent and fit for sexual
consummation, but found no current signs of recent sexual
intercourse, attributing the absence to regular bathing over the
intervening two-day period. PW-13 is the medical officer who
examined the victim on 05.04.2016 and found recent signs of
sexual intercourse, rupture of hymen, fresh tear in hymenal
opening, multiple abrasions on the right wrist and inner thighs,
and clothes soiled with mud and whitish discharge; she assessed
the victim’s age as between 14 and 18 years.
(v) PW-16 and PW-17 are the current and former Headmasters of
Govt. PUPS Salebarat respectively, who produced and proved
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the school admission register (Ext-13) showing the victim’s date
of birth as 17.12.1999, which would make her 16 years, 3 months
and 17 days old on the date of occurrence. PW-18 is the
investigating officer who proved the seizure of the admission
register and other material documents. The defence examined
no witnesses and took the plea of complete denial and false
implication on account of prior enmity over a village pond
construction dispute.
II. SUBMISSIONS ON BEHALF OF THE APPELLANTS:
4. The learned counsel for the Appellants respectfully and earnestly
made the following submissions in support of his contentions:
(i) The appellants challenged the applicability of the POCSO Act
primarily by attacking the evidentiary value of the school
admission register. They argued that PW-17, the Headmaster
who produced the register, expressly admitted in cross-
examination that he could not state the basis on which the date
of birth entry of 17.12.1999 was made, since he was not working
at the school at that time. Placing reliance on the Supreme
Court’s decision in Birka Shiva v. State of Telangana1, the
appellants contended that a school admission register whose
entries cannot be traced to any primary source document cannot
be treated as conclusive proof of the victim’s age.
(ii) The appellants contended that the trial court committed a
fundamental legal error by invoking Section 34 of the POCSO
1
(2024) SCC OnLine SC 3758
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Act for determining the age of the victim, pointing out that the
said provision governs age determination of the accused in
conflict with law, not the victim. Applying it to the victim, they
argued, was a wholly misconceived approach that rendered the
entire POCSO conviction jurisdictionally infirm. They further
relied on PW-13’s medical opinion placing the victim’s age
between 14 and 18 years to argue that she could equally have
been a major on the date of occurrence, taking her outside the
definition of “child” under Section 2(1)(d) of the POCSO Act.
(iii) On the question of voluntariness, the appellants relied on the
contents of the FIR itself, arguing that PW-1’s own written
report stated that the victim had “gone somewhere” and that
gold ornaments were found missing from the house, which they
submitted was consistent with the victim having left voluntarily,
possibly in elopement. They further pointed to the medical
officer PW-13’s finding that the victim was “habituated to sexual
intercourse” as evidence that she was not a stranger to
intercourse and had willingly accompanied the accused, thereby
negating the foundational ingredient of force or enticement
required under Section 363 IPC.
(iv) On the identification and specific involvement of appellant
Pramod Bariha, the appellants argued that the prosecutrix’s own
deposition did not mention his name in the initial and critical
portions of her account describing the abduction and the assault.
His name surfaced only in the concluding portion of her
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narrative, specifically at the point of being “lifted,” which the
appellants submitted raised a strong doubt that his implication
was an afterthought and possibly motivated by the pre-existing
village enmity between the families.
(v) On the general credibility of the prosecution case, the appellants
argued that no independent eyewitness saw either the
abduction or the confinement despite the occurrence taking
place in a village setting and the Pahada being only
approximately 2 km away. They highlighted that PW-4 and PW-
5 were purely hearsay witnesses having heard the account from
the victim herself after her return, and that Baidi Sahu, who
allegedly witnessed the original hen purchase, was never
examined by the prosecution, constituting a deliberate
withholding of an available witness. The appellants also pointed
to the complete absence of any village meeting after the incident,
which they argued would normally follow such a grave event in
a village community and whose absence indicated the story was
fabricated at a later stage.
III. SUBMISSIONS ON BEHALF OF THE RESPONDENT (STATE):
5. The learned counsel for the State respectfully and earnestly made the
following submissions in support of his contentions:
(i) The State defended the school admission register as a public
document maintained in regular course, produced from proper
custody, and duly proved through multiple witnesses including
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Date: 08-Jul-2026 17:14:15PW-16, PW-17, and PW-18. It submitted that under the Juvenile
Justice Act framework made applicable through Section 34 of
the POCSO Act, such a document carries a statutory rebuttable
presumption of correctness as to the recorded date of birth. The
State crucially pointed out that despite cross-examining PW-1,
PW-2, and PW-18 at length, the defence never put a specific
suggestion to any of them that the date of birth entry in the
register was incorrect, fabricated, or entered on a wrong basis,
which amounts in law to acceptance of that entry by the defence,
leaving the presumption unrebutted.
(ii) The State strongly defended the prosecutrix’s testimony as the
foundational pillar of the prosecution case, relying on the settled
position in State of H.P. v. Raghubir Singh2 and State v. Gurmit
Singh3 that a conviction can be based solely on the testimony of
the prosecutrix if it is consistent, credible, and withstands cross-
examination. The State submitted that PW-2’s account remained
consistent across her statement to police, her Section 164 Cr.P.C.
statement before the Magistrate, and her deposition before the
trial court, and that her veracity was not materially shaken in
cross-examination. It also relied on State of Orissa v. Thakara
Besra4 to emphasise that non-examination of certain witnesses is
not a fatal infirmity when those witnesses did not witness the
commission of the offence itself.
2
(1993) 2 SCC 622
3
(1996) 2 SCC 384
4
(2002) 9 SCC 86
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(iii) On the absence of physical signs on the accused, the State relied
on the categorical depositions of PW-7 and PW-12, both
qualified medical officers, who explained that the accused were
examined two days after the alleged incident and had bathed
regularly in the intervening period. Both doctors stated clearly
that such bathing is sufficient to eliminate biological traces and
symptoms of recent intercourse, and that this was precisely the
reason no such signs were found on examination. The State
argued that this expert medical explanation was unchallenged
by any contrary scientific opinion from the defence, and
therefore no inference favourable to the accused could be drawn
from the absence of these markers.
(iv) On the charge of gang rape under Section 376(D) IPC, the State
relied on Ashok v. State5 to submit that it is not necessary to
prove a completed act of rape by each individual accused
separately. It is sufficient to establish that the accused acted in
concert with a common intention to commit the offence, and
each member of the group becomes liable for the act as if done
by him alone. The State submitted that the prosecutrix’s account
of both accused participating jointly from the initial abduction
through the entire period of confinement and assault established
this common intention clearly and beyond reasonable doubt.
(v) On the plea of false implication, the State submitted that no
woman, particularly a minor girl, would voluntarily expose
5
(2003) 2 SCC 143.
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herself to the shame, trauma, and hostile cross-examination
inherent in a rape trial merely to settle a score over a village
pond dispute. It further submitted that the medical evidence of
PW-13, including fresh hymenal tear, multiple abrasions, and
soiled clothing examined only hours after the victim’s return,
constituted objective and independent corroboration that was
wholly inconsistent with a narrative of voluntary elopement and
consensual intercourse.
IV. ANALYSIS OF THE JUDGMENT OF THE LOWER COURT:
6. The Learned Trial Court made the following observations:
(i) On age determination, the trial court adopted a doctrinally
correct layered approach. It noted the oral evidence of PW-1
placing the victim at about 16 years 3 months and the medical
estimate of PW-13 as contextual background, but ultimately
anchored its finding on the school admission register (Ext-13)
recording the date of birth as 17.12.1999. Applying the JJ Act
framework via Section 34 of the POCSO Act and following the
Supreme Court’s direction in Jarnail Singh v. State of Haryana6,
the court placed the burden of rebuttal on the defence. Since the
defence failed to challenge the specific entry through any of the
available prosecution witnesses during cross-examination, the
court treated the entry as unrebutted. The defence’s reliance on
Birka Shiva was effectively distinguished on facts, since that case
involved an active challenge to the basis of entry, whereas here
6
(2013) 7 SCC 263Page 9
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Date: 08-Jul-2026 17:14:15no such challenge was ever put to any witness, making the
present case clearly distinguishable on that ground.
(ii) On the prosecution’s argument that Section 34 was being
applied to the victim rather than the accused, the trial court’s
reasoning, while somewhat compressed, was substantively
sound. The court used Section 34 as a procedural gateway to
import the JJ Act‘s age-determination hierarchy, which places
school records at the top, and applied that hierarchy to resolve
the question of the victim’s age. The criticism that Section 34
applies only to accused persons is a legitimate textual argument,
but the court’s pragmatic borrowing of the procedure for the
victim’s age determination in the absence of a specific statutory
provision for the same under the POCSO Act reflects a
purposive interpretation aimed at protecting the child victim,
which higher courts have generally endorsed in the post-Jarnail
Singh era.
(iii) On the appreciation of the prosecutrix’s testimony and the
hearsay evidence of PW-4 and PW-5, the trial court admitted the
latter under Section 6 of the Indian Evidence Act as part of the
same transaction, since the victim’s immediate disclosure upon
being abandoned near her house constituted part of the res
gestae of the entire criminal transaction. The court found PW-2’s
testimony consistent, natural, and corroborated on material
particulars by the medical evidence of PW-13.
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(iv) The court applied the principle in Bimal Suresh v.
ChaluverapinakeApal7 and State v. Gurmit Singh8 that
conviction can rest on sole testimony of the prosecutrix when it
inspires confidence, and found that her evidence not only
survived cross-examination but was materially supported by
independent medical and physical evidence. The court also
correctly invoked Gurucharan v. State9 to hold that absence of
vaginal canal injuries does not negate rape when the victim is a
minor, since the lack of violent resistance by a minor does not
imply consent and is fully explicable by the victim’s age and
helplessness.
(v) On sentencing and the statutory framework, the court’s
application of Section 42 of the POCSO Act to avoid awarding
double punishment for the same act under both IPC and POCSO
is legally accurate and reflects correct understanding of the non-
obstante clause contained therein. The court also correctly held
that the 2019 amendment to Section 6 of the POCSO Act
enhancing minimum punishment to 20 years could not be
applied to an offence committed in April 2016, since penal
amendments are presumed prospective unless made expressly
or by necessary implication retrospective, which this
amendment was not.
7
AIR 2003 SUPREME COURT 818
8
(1996) 2 SCC 384
9
AIR 1972 SC 2661
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(vi) The award of 20 years RI under Section 376(D) IPC as the greater
punishment, direction for concurrent running of sentences, set-
off of pre-conviction detention under Section 428 Cr.P.C., victim
compensation under Section 357 Cr.P.C., and DLSA
compensation of Rs. 4 lakhs together reflect a comprehensive
and victim-centric sentencing order. The one significant gap in
the judgment is the absence of any independent discussion or
analysis on the conviction under Section 376(2)(n) IPC, which
requires proof of repeated rape by the same person on the same
woman. Despite framing charge under this provision, the court
convicted under it without separately evaluating the evidence
specific to that ingredient.
V. COURT’S REASONING AND ANALYSIS:
7. Heard Learned Counsel for the parties and perused the documents
placed before this Court.
8. The factual matrix has been set out in the impugned judgment and
need not be recapitulated in extenso. Suffice it to state that the
appellants stand convicted by the learned Special Judge, Bolangir
under Sections 363, 366, 376(D) and 376(2)(n) of the Indian Penal
Code, 1860 and Sections 6 and 10 of the Protection of Children from
Sexual Offences Act, 2012 (hereinafter “the POCSO Act“). They have
been sentenced to undergo rigorous imprisonment for twenty years
and to pay a fine of Rs. 10,000/- each under Section 376(D) IPC, with
default stipulations. Sentences on remaining counts have been
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directed to run concurrently. Being aggrieved, the appellants have
preferred this Criminal Appeal.
9. Having heard learned counsel for the appellants and the learned
Additional Government Advocate for the State and having perused
the entire trial court record, I find that the following issues arise for
determination:
a) Whether the prosecution has established that the victim was a
“child” within the meaning of Section 2(1)(d) of the POCSO Act
on the date of the occurrence?
b) Whether the testimony of the prosecutrix (PW-2) is credible,
consistent and sufficient to sustain conviction?
c) Whether the ingredients of the offences under Sections 363, 366
and 376(D) IPC are established beyond reasonable doubt?
d) Whether the conviction under Section 376(2)(n) IPC is
sustainable?
e) Whether the sentence awarded by the trial court calls for any
interference?
10. The foundational question is whether the victim was below 18 years
of age on 03.04.2016, the date of the occurrence. The POCSO Act
defines “child” under Section 2(1)(d) as any person below the age of
eighteen years. The prosecution relies on three strands of evidence: (a)
the oral testimony of PW-1, the father, who stated that the victim was
about 16 years and 3 months old; (b) the medical opinion of PW-13,
who assessed the victim’s age as between 14 and 18 years; and (c) the
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school admission register (Ext-13) maintained at Govt. PUPS,
Salebarat recording the victim’s date of birth as 17.12.1999.
11. The appellants have attacked the evidentiary value of Ext-13 primarily
on the ground that PW-17, the former Headmaster who produced the
register, admitted in cross-examination that he could not state the
basis on which the date of birth entry was made, since he was not
posted at the school at the relevant time. Reliance was placed on Birka
Shiva v. State of Telangana (supra), to urge that a school register
whose foundational basis is unknown cannot constitute reliable proof
of age.
12. I have considered this submission carefully. The law on age
determination of a child victim under the POCSO Act has been
authoritatively laid down by the Supreme Court in Jarnail Singh v.
State of Haryana10wherein the Court approved the hierarchy
prescribed under Rule 12 of the Juvenile Justice (Care and Protection
of Children) Rules, 2007, placing the school register or matriculation
certificate at the top of the evidentiary hierarchy. The Rule 12(3)
specifically reads as follows:
“In every case concerning a child or juvenile in conflict with
law, the age determination inquiry shall be conducted by the
Court or the Board or, as the case may be, the Committee by
seeking evidence by obtaining-
(a) (i) the matriculation or equivalent certificates, if
available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a
play school) first attended; and in the absence whereof;10
(2013) 7 SCC 263Page 14
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(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat.”
13. Likewise, in Shah Nawaz v. State of U.P.11, the Supreme Court held
that a date of birth entry in a school register, being a document
maintained in the regular course of business of the institution and
produced from proper custody, carries a presumption of correctness
under, unless the contrary is affirmatively established by the party
challenging it.
14. The critical distinction between the present case and Birka Shiva
(supra) lies in the manner the challenge was mounted. In that case, the
defence actively challenged the basis of the entry through specific
cross-examination and adduced material to demonstrate that the entry
was unreliable. In the present case, the defence adopted a
fundamentally different strategy. Despite prolonged cross-
examination of PW-1, PW-2, PW-16 and PW-18, at no point was a
specific suggestion put to any witness that the date of birth entry of
17.12.1999 in Ext-13 was incorrect, fabricated, or entered on an
erroneous basis. This omission is of decisive significance.
15. In fact, Laxmibai (Dead) Thr. L.Rs v. Bhagwantbuva (Dead) Thr.
L.Rs12the Supreme Court reiterated the settled rule that where a party
seeks to dispute the correctness of a witness’s statement, the witness
must be specifically confronted with that part of the testimony in
cross-examination. In the absence of such confrontation, the credibility
of the witness cannot later be impeached on that point, and the
11
(2011) 13 SCC 751
12
(2013) 4 SCC 97
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unchallenged part of the evidence may be relied upon by the Court.
The Court held as follows:
“Furthermore, there cannot be any dispute with respect to
the settled legal proposition, that if a party wishes to raise
any doubt as regards the correctness of the statement of a
witness, the said witness must be given an opportunity to
explain his statement by drawing his attention to that part
of it, which has been objected to by the other party, as being
untrue. Without this, it is not possible to impeach his
credibility. Such a law has been advanced in view of the
statutory provisions enshrined in Section 138 of the
Evidence Act, 1872, which enable the opposite party to
cross-examine a witness as regards information tendered in
evidence by him during his initial examination in chief, and
the scope of this provision stands enlarged by Section 146 of
the Evidence Act, which permits a witness to be questioned,
inter-alia, in order to test his veracity.”
16. In the present case, the failure of the defence to challenge the specific
entry, when ample opportunity existed, leaves the statutory
presumption attaching to Ext-13 wholly unrebutted.
17. As regards the appellants’ objection that the trial court erroneously
invoked Section 34 of the POCSO Act, which textually governs the age
determination of “a person accused of any offence,” I note that while
the textual criticism has some force, the trial court’s approach was
substantively sound. The court used Section 34 as a procedural
conduit to import the well-established JJ Act hierarchy for age
determination. In the absence of a dedicated statutory provision under
the POCSO Act for determining the age of the child victim, courts
have consistently and pragmatically applied the same hierarchy. The
Supreme Court’s approval of this hierarchy in Jarnail Singh (supra)
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was not confined to the accused alone but was stated as a general
principle for age determination in cases involving children. I see no
jurisdictional infirmity in the trial court’s approach.
18. The medical opinion of PW-13 placing the victim’s age “between 14
and 18 years” does not detract from this finding. It is settled law that
medical opinion on age is at best an approximation and must yield to
documentary evidence when available. The range of 14 to 18 years is
entirely consistent with the date of birth of 17.12.1999, which would
make the victim 16 years, 3 months and 17 days old on 03.04.2016.
Accordingly, I hold that the prosecution has established beyond
reasonable doubt that the victim was a child within the meaning of
Section 2(1)(d) of the POCSO Act on the date of the occurrence. Issue
(i) is answered in the affirmative.
19. Now, the Court must move to the issue of the credibility of the
prosecutrix. The appellants have attacked the credibility of PW-2 on
several grounds: the absence of independent eyewitnesses, the alleged
delayed naming of appellant Pramod Bariha in her account, the
finding of PW-13 that she was “habituated to sexual intercourse,” and
the non-examination of Baidi Sahu, the alleged witness to the hen
purchase.
20. The law governing the evidentiary value of a prosecutrix’s testimony
is well settled. In Gurmit Singh (supra) the Supreme Court held that
the testimony of a victim of sexual assault stands on the same footing
as the testimony of an injured witness. The Court held as follows:
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Date: 08-Jul-2026 17:14:15“The testimony of the victim in such cases is vital and
unless there are compelling reasons which necessitate
looking for corroboration of her statement, the courts should
find no difficulty to act on the testimony of a victim of
sexual assault alone to convict an accused where her
testimony inspires confidence and is found to be reliable.
Seeking corroboration of her statement before relying upon
the same, as a rule, in such cases amounts to adding insult
to injury. Why should the evidence of a girl of a woman who
complains of rape or sexual molestation, be viewed with
doubt, disbelief or suspicion? The Court while appreciating
the evidence of a prosecutrix may look for some assurance of
her statement to satisfy its judicial conscience, since she is a
witness who is interested in the outcome of the charge
levelled by her, but there is no requirement of law to insist
upon corroboration of her statement to base conviction of an
accused. The evidence of a victim of sexual assault stands
almost at par with the evidence of an injured witness and to
an extent is even more reliable. Just as a witness who has
sustained some injury in the occurrence, which is not found
to be self-inflicted, is considered to be a good witness in the
sense that he is least likely to shield the real culprit, the
evidence of a victim of a sexual offence is entitled to great
weight, absence of corroboration notwithstanding.
Corroborative evidence is not an imperative component of
judicial credence in every case of rape. Corroboration as a
condition for judicial reliance on the testimony of the
prosecutrix is not a requirement of law but a guidance of
prudence under given circumstances. It must not be over-
looked that a woman or a girl subjected to sexual assault is
not an accomplice to the crime but is a victim of another
persons’s lust and it is improper and undesirable to test her
evidence with a certain amount of suspicion, treating her as
if she were an accomplice. Inferences have to be drawn from
a given set of facts and circumstances with realistic
diversity and not dead uniformity lest that type of rigidity
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cannot cling to a fossil formula and insist upon
corroboration even if, taken as a whole, the case spoken of by
the victim of sex crime strikes the judicial mind as
probable.”
21. I have examined the testimony of PW-2 with care. Her account is
detailed and specific: she describes the evening visit of Abhilash
Bariha on the pretext of purchasing a hen for Rs. 200/-, the return of
both accused between 9 and 10 PM, the manner in which Abhilash
caught hold of her and gagged her mouth while Pramod assisted in
lifting and carrying her to Gidhghar Pahada, the tying of her hands,
the denial of food over two nights and one day, and the repeated
commission of rape by both accused. This account remained
consistent across her statement under Section 161 Cr.P.C., her Section
164 statement before the learned Magistrate, and her deposition before
the trial court. During extensive cross-examination, the defence could
not elicit any material contradiction or omission that would shake the
foundations of her testimony.
22. The submission that appellant Pramod Bariha’s name surfaced
belatedly in her narrative is, upon careful reading of the deposition,
not borne out. PW-2 specifically stated that both accused came
together to her house between 9 and 10 PM, and that while Abhilash
caught hold of her, both of them together lifted and carried her to the
Pahada. The natural sequence of narration, describing the acts of each
participant as they occurred, does not amount to belated implication.
23. It must be made clear that the testimony of a victim of sexual assault
cannot be treated as if it were the testimony of an accomplice. The
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prosecutrix is not a participant in the crime; she is the person against
whom the crime is alleged to have been committed. To approach her
evidence with an initial presumption of suspicion only because the
allegation relates to a sexual offence would be legally unsound. It is,
in fact, an anomaly that such doubt is often suggested in cases of
sexual offences, though no similar presumption is ordinarily applied
to victims of other crimes. A victim of assault, robbery, kidnapping or
attempt to murder is not treated as inherently suspect merely because
he or she is the complainant. There is no reason why a different and
more burdensome standard should be applied to a prosecutrix. The
defence is entitled to test her evidence through cross-examination, but
it cannot ask the Court to begin from a position of distrust merely
because she is the victim of the offence alleged.
24. Moreover, the finding of PW-13 that the victim was “habituated to
sexual intercourse” is equally unavailing to the appellants. It is firmly
settled that evidence of prior sexual experience is irrelevant to the
question whether the prosecutrix was raped on the date of the
occurrence. Section 53A of the Indian Evidence Act and the proviso to
Section 146 of the same Act, inserted by the Criminal Law
(Amendment) Act, 2013, expressly prohibit drawing any inference
from a victim’s prior sexual experience as to her consent or credibility
in a rape trial. In any event, the victim being a child of 16 years, the
question of consent is entirely immaterial by virtue of Section 3 read
with Section 5 of the POCSO Act.
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25. This Court finds the said submission wholly untenable. It is difficult
to appreciate how such an argument could have been advanced at all,
in the face of the clear statutory position and the settled principles
governing appreciation of evidence in sexual offences. What legal
consequence can possibly follow from the observation that the
prosecutrix was “habituated to sexual intercourse”? Does it disprove
the occurrence alleged? Does it establish consent? Does it render the
testimony of a minor victim less credible in law? The answer to each
of these questions is plainly in the negative.
26. The argument seeks to shift the focus from the conduct of the
appellants to the supposed past conduct of the victim, which is
impermissible. A criminal trial cannot be converted into an inquiry
into the character of the prosecutrix. The only relevant issue is
whether the offence alleged was committed by the appellants on the
date and in the manner stated by PW-2. In the present case, the
prosecutrix was a minor, and therefore the plea becomes even more
unsustainable. The appellants cannot be permitted to draw any
advantage from such a legally irrelevant and plainly misconceived
submission, and the same is rejected.
27. The submission, in substance, is a poor attempt to make a legally
irrelevant circumstance do the work of evidence. It answers none of
the material facts in the prosecution case. It does not disprove the
taking away of the prosecutrix, it does not explain the confinement, it
does not meet the allegation of sexual assault, and it certainly does not
make the testimony of a sixteen-year-old child unreliable. It is, at best,
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a desperate effort to grasp at a medical observation and use it to cast
aspersions on the victim. Such an argument is precisely the kind of
victim-blaming which the law does not permit. The appellants are on
trial for their alleged conduct. The prosecutrix is not on trial for her
character. This Court cannot countenance an attempt to divert
attention from the accusation by placing a minor victim under moral
scrutiny. The submission is therefore deprecated and rejected.
28. Regarding the non-examination of Baidi Sahu, the Supreme Court in
Thakara Besra(supra) held that non-examination of a witness who is
not an eyewitness to the commission of the offence itself does not
constitute a fatal infirmity in the prosecution case. Baidi Sahu
allegedly witnessed only the purchase of the hen in the evening,
which is not even a disputed fact. His examination would not have
added materially to the prosecution case. Similarly, PW-4 and PW-5,
to whom the victim narrated the events immediately upon being
abandoned near her house, were correctly admitted by the trial court
as res gestae witnesses under Section 6 of the Indian Evidence Act.
Their testimony constitutes the immediate and spontaneous
declarations of the victim forming part of the same transaction and
lends natural corroboration to her account.
29. I am satisfied that the testimony of PW-2 is consistentand trustworthy.
It inspires judicial confidence and stands corroborated on material
particulars by independent medical and physical evidence. Issue (ii) is
answered in the affirmative.
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30. Now, the Court must move to the third issue. Section 363 IPC
punishes kidnapping from lawful guardianship. Under Section 361,
whoever takes or entices any minor under sixteen years of age if a
male, or under eighteen years of age if a female, out of the keeping of
the lawful guardian of such minor without the consent of such
guardian, is said to kidnap such minor from lawful guardianship. The
victim being a female minor of 16 years at the date of the occurrence,
the statutory threshold is satisfied. The evidence of PW-2 establishes
that she was taken from her house, where she was in the constructive
keeping of her parents (PW-1 and PW-3), against her will and without
the knowledge or consent of her parents.
31. The contention that the victim went voluntarily, based on the FIR’s
reference to her having “gone somewhere” and gold ornaments being
missing, is without substance. The FIR was lodged by PW-1 on
04.04.2016 when the victim had not yet returned and the full facts
were not known to him. It is settled law that the FIR is not an
encyclopaedia of the prosecution case and that subsequent revelations
do not impeach it. In Amish Devgan v. Union of India13, the Supreme
Court held that FIR is not a detailed chronicle of all intricate and
minute details of an offence. The relevant excerpts are produced
below:
“Acronym FIR, or the First Information Report, is neither
defined in the Criminal Code nor is used therein, albeit it
refers to the information relating to the commission of a
cognisable offence. This information, if given orally to an13
AIRONLINE 2020 SC 930Page 23
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Date: 08-Jul-2026 17:14:15officer in-charge of the police station, is mandated to be
reduced in writing. Information to be recorded in writing
need not be necessarily by an eye-witness, and hence, cannot
be rejected merely because it is hearsay. Section 154 does not
mandate nor is this requirement manifest from other
provisions of the Criminal Code. Further, FIR is not meant
to be a detailed document containing chronicle of all
intricate and minute details. In Dharma Rama Bhagare v.
State of Maharashtra,118 it was held that an FIR is not
even considered to be a substantive piece of evidence and can
be only used to corroborate or contradict the informant’s
evidence in the court.”
32. The contention regarding voluntary departure is further belied by the
unshaken testimony of PW-2 that Abhilash caught hold of her, gagged
her mouth, and both accused physically lifted and carried her to the
Pahada. The consent of a minor is, in any event, wholly immaterial in
law for the purpose of Section 361 IPC.
33. Section 366 IPC requires proof that the kidnapping or abduction was
with the intent that the victim may be compelled or induced to have
illicit intercourse. The sequence of events, namely the abduction of the
victim at night, her confinement at a secluded hillock for two nights
and one day, and the commission of repeated rape during that period,
leaves no room for doubt that the taking was with the intent
contemplated by Section 366. The ingredients of Section 366 IPC are
fully established.
34. Turning to Section 376(D) IPC, which deals with gang rape, I note that
the offence is made out where a woman is raped by one or more
persons constituting a group or acting in furtherance of a common
intention. The Supreme Court in Ashok (supra) held that it is not
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necessary to prove a completed act of penetrative sexual assault by
each individual accused separately. Where two or more persons act
together with a common intention to commit rape, each is liable for
the act done by any of them in furtherance of that common intention.
35. In the present case, PW-2’s testimony establishes that both appellants
came together, abducted her jointly, confined her at the Pahada, and
both committed rape on her during the period of confinement. The
joint participation from inception to completion of the criminal design
establishes the common intention beyond reasonable doubt. The
absence of physical signs of recent intercourse on the accused, as
noted by PW-7 and PW-12, has been satisfactorily explained by both
medical officers, who categorically stated that regular bathing over the
intervening two-day period before examination was sufficient to
eliminate biological traces. This expert explanation was not challenged
by any contrary medical evidence from the defence side, and no
adverse inference can be drawn against the prosecution on this
account. The ingredients of Section 376(D) IPC are fully established.
36. The defence plea of false implication on account of village enmity over
a pond construction dispute deserves to be rejected. A woman,
particularly a minor, would not ordinarily subject herself to the
ordeal, humiliation and hostile cross-examination inherent in a rape
trial merely to settle scores with her adversary. The absence of any
village meeting after the incident is of no consequence; there is no rule
of evidence or common experience that mandates such a meeting as a
precondition for the credibility of a complaint. The medical evidence
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of PW-13, documenting fresh hymenal tear, multiple abrasions on the
right wrist and inner thighs, and clothes soiled with mud and whitish
discharge, examined only hours after the victim’s return, constitutes
powerful objective corroboration wholly inconsistent with a theory of
fabrication. Issue (iii) is answered in the affirmative.
37. Now this Court must turn to the fourth issue, which pertains to the
Conviction under Section 376(2)(n) of IPC. Section 376(2)(n) IPC, as it
stood at the relevant time, prescribes enhanced punishment where a
person commits rape repeatedly on the same woman. The essential
ingredient of this provision is that the same accused must be shown to
have committed rape on the same victim on more than one occasion.
The trial court, while framing charge and recording conviction under
this provision, did not undertake any independent analysis of
whether the evidence established repeated acts of rape by each
individual accused on the victim.
38. I have examined the evidence on this point. PW-2 stated that “both
accused repeatedly committed rape on her” during the period of
confinement spanning two nights and one day. This general
statement, while establishing the overall course of conduct, does not
particularise how many times each individual accused committed the
act, at what intervals, and in what sequence. The expression
“repeatedly” in the victim’s account, read in the context of a joint
confinement involving two accused, makes it inherently difficult to
segregate individual acts attributable to each accused for the purpose
of Section 376(2)(n).
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39. However, this shortfall is of no practical consequence to the final
result. The conviction and sentence under Section 376(D) IPC, which
carries the same minimum punishment of 20 years rigorous
imprisonment (post-Criminal Law Amendment Act, 2013), already
stands sustained. The trial court itself awarded the substantive
sentence under Section 376(D) and directed all other sentences to run
concurrently. In the interest of precision, the conviction under Section
376(2)(n) IPC is set aside, without this having any bearing on the
substantive sentence or any other conviction.
40. Lastly, this Court must turn to the final issue, which pertains to the
requirement of the interference into the sentence of the trial court. The
trial court awarded rigorous imprisonment of twenty years with a fine
of Rs. 10,000/- under Section 376(D) IPC, which is the minimum
prescribed sentence. The trial court applied Section 42 of the POCSO
Act to avoid double punishment for the same act under both IPC and
POCSO. It also correctly held that the 2019 amendment to Section 6 of
the POCSO Act enhancing the minimum punishment to twenty years
could not be applied retrospectively to an offence committed in April
2016. The direction for concurrent running of sentences, set-off of pre-
conviction detention under Section 428 Cr.P.C., victim compensation
under Section 357 Cr.P.C., and DLSA compensation of Rs. 4,00,000/-
reflect a lawful and comprehensive sentencing order. I find no ground
for interference with the sentence.
VI. CONCLUSION:
41. For the foregoing reasons, this Court holds as follows:
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a) The conviction of both appellants under Sections 363, 366 and
376(D) of the Indian Penal Code, 1860 and under Sections 6 and 10
of the POCSO Act, 2012 is hereby confirmed.
b) The conviction under Section 376(2)(n) of the Indian Penal Code is
set aside.
c) The sentence of rigorous imprisonment for twenty years with fine
of Rs. 10,000/- under Section 376(D) IPC, with all other sentences
running concurrently, is confirmed.
d) The direction for set-off of pre-conviction detention under Section
428 Cr.P.C., victim compensation under Section 357 Cr.P.C., and
DLSA compensation of Rs. 4,00,000/- shall remain undisturbed.
e) The default stipulations as imposed by the trial court shall
continue to operate.
42. It is made clear that the setting aside of the conviction under Section
376(2)(n) IPC does not result in any alteration of the sentence imposed
upon the appellants. The substantive sentence of rigorous
imprisonment for twenty years with fine of Rs.10,000/- under Section
376(D) IPC, being the operative sentence, stands confirmed. Since the
remaining sentences were directed to run concurrently, the
modification indicated above does not reduce, vary, or otherwise
affect the total sentence to be undergone by the appellants.
43. The Criminal Appeals are, accordingly, partly allowed to the extent of
setting aside the conviction under Section 376(2)(n) IPC, and are
dismissed in all other respects. The impugned judgment and order of
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conviction and sentence passed by the learned Special Judge, Bolangir
is confirmed subject to the modification indicated above.
44. The appellants, who are stated to be in custody, shall continue to
serve the sentence as imposed.
45. Interim order, if any, passed earlier stands vacated.
(Dr. Sanjeeb K Panigrahi)
Judge
Orissa High Court, Cuttack,
Dated the 25th June, 2026/
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