Orissa High Court
Susanta Barik vs State Of Odisha on 22 May, 2026
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 withSection 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 2 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
Page 3 of 14
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
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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 ofPage 5 of 14
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 6 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.”
Page 7 of 14
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
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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
Page 9 of 14
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
Page 10 of 14
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 11 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:-
Page 12 of 14
“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
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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
Signature Not Verified
Digitally Signed
Signed by: SUBHASIS MOHANTY Page 14 of 14
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 25-May-2026 20:33:05
