Judicial Analysis Court Copy Headnote Facts Arguments Court observation

ORISSA HIGH COURT
S.K. Sahoo, J.
Satrughna Samal – Appellant
versus
State of Odisha – Respondent
JCRLA No.24 of 2015
Decided on 23.8.2023

Advocates:
Counsel for the Parties:
For the Appellant: Mr. Sobhan Panigrahi, Amicus Curiae
For the Respondent:Mr. Arupananda Das, Addl. Government Advocate

IMPORTANT POINTS
(1) Consensual sexual intercourse is not rape.
(2) Rape – Two finger test in private part of victim is not permissible under law.

Headnote:
(A) Indian Penal Code, 1860 – Sections 366-A/376 – Kidnapping and rape – In absence of any clinching evidence that victim was under age of eighteen years at the time of occurrence and since she seems to have left her lawful guardianship on her own accord and voluntarily joined accused and she remained in company of appellant without any protest for seven months and was treating appellant to be her husband and allowing him to have sexual intercourse with her and since she seems to be a consenting party – Impugned judgment and order of conviction of appellant under Sections 366/376 of I.P.C. and sentence passed thereunder hereby set aside and appellant acquitted of all such charges. (Paras 28 and 29)
(B) Indian Penal Code, 1860 – Section 375 – Rape – Medical professionals while conducting medical examination on victims of rape and sexual assault cases should desist from two finger test in private part of victim which is also known as virginity test as the test violates right of such victims to privacy, physical and mental integrity and dignity and not at all permissible under law – It is no less than adding an unforgettable insult to an unhealed injury – When a sexually active woman or a woman habituated to sexual intercourse can also be raped if act of the accused comes within Section 375 of I.P.C., this sort of test is certainly unscientific and traumatizing. (Para 24)
Result: Jail Criminal Appeal is allowed. Appellant acquitted.

JUDGMENT

S.K. Sahoo, J.—The appellant Satrughna Samal faced trial in the Court of learned Assistant Sessions Judge (Special Track Court), Cuttack in S.T. Case No.178 of 2014 for commission of offences punishable under sections 366-A/376 of the Indian Penal Code (hereinafter ‘I.P.C.’) on the accusation that on 16.08.2010 the appellant induced the victim girl (P.W.8), who is the minor daughter of the informant (P.W.3), to go from her house situated at village Safa under Tangi police station, Cuttack to somewhere with intent that the victim may be (or knowing that it is likely that she would be) forced (or seduced) to illicit intercourse and also committed rape on her.

2. The learned trial Court vide impugned judgment and order dated 17.12.2014 though acquitted the appellant of the charge under section 366-A of the I.P.C. but found him guilty of the offences punishable under sections 366/376 of the I.P.C. and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/-(rupees ten thousand), in default, to undergo rigorous imprisonment for six months more for the offence under section 376 of the of the I.P.C. and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.5,000/-(rupees five thousand), in default, to undergo rigorous imprisonment for three months more for the offence under section 366 of the I.P.C. and both the substantive sentences were directed to run concurrently.

The prosecution case:

3. The prosecution case, as per the first information report (hereinafter ‘F.I.R.’) lodged by Shri Hemanta Kumar Mohanty (P.W.3) before the I.I.C., Tangi police station, Cuttack on 19.08.2010, in short, is that his daughter/victim (P.W.8) was missing from his house since 16.08.2010 which he had intimated to the police on 18.08.2010 and thereafter he came to know on enquiry that the appellant who belonged to Safa Sabar Sahi along with his brother Mitika Samal, friends Kalia Samal and Dharama Samal had kidnapped his daughter.

4. On the basis of such written report, the I.I.C. of Tangi police station registered Tangi P.S. Case No.116 dated 19.08.2010 against the appellant along with three others under section 366A/34 of the I.P.C. and directed Shri Narayan Das, (P.W.10), S.I. of police, Tangi police station to take up the investigation of the case.

5. P.W.10, the Investigating Officer during course of investigation, examined the informant, visited the spot and prepared the spot map (Ext.7). Thereafter he examined the mother of the victim and other witnesses. On 28.03.2011, he apprehended the appellant from his house and rescued the victim girl from the house of the appellant on the same day and examined the victim. He also seized the wearing apparels of the victim so also that of the appellant and prepared the seizure lists in presence of witnesses marked as Ext.8 and Ext.9 respectively. He sent the appellant and the victim to F.M.T. Department of S.C.B. Medical College and Hospital, Cuttack for their medical examination through escorting constable. On 28.03.2011 at about 6.30 p.m., he seized the school leaving certificate of the victim on production by her father and prepared the seizure list marked as Ext.2/1. On 29.03.2011, the appellant was forwarded to the Court of J.M.F.C.(R), Cuttack and on the prayer of the I.O., the statement of the victim was recorded under section 164 Cr.P.C on 29.03.2011 and the very day, the I.O. (P.W.10) handed over the victim to her father (P.W.3) as per direction of the learned J.M.F.C.(R), Cuttack. On 09.05.2011, the I.O. sent the seized sealed packets to S.F.S.L., Rasulgarh, Bhubaneswar through the Court of J.M.F.C.(R), Cuttack for chemical examination. On 28.05.2011, he received the medical examination report of the victim so also of the appellant from the M.O., F.M.T., S.C.B., Medical College and Hospital, Cuttack. On 30.05.2011, he submitted the charge sheet in the case.

Charges:

6. The learned trial Court on 08.07.2014 framed the charges