The conviction for rape and kidnapping is affirmed based on the victim's age as a minor, underscoring that consent is immaterial under IPC provisions.

JUDGMENT :

S.S. Mishra, J.

The present Criminal Appeal, filed by the appellants is directed against the judgment and order dated 21.03.1994 passed by the learned Additional Sessions Judge, Balangir in Sessions Case No.132/39 of 1993, whereby the accused-appellant No.1 has been convicted U/s.376/366 of I.P.C. and other accused appellants U/s. 366 of the I.P.C. Accordingly, accused-appellant No.1 has been sentenced to undergo R.I. for a period of 7 years for offence U/s.376 of I.P.C. and further R.I. of 4 years for offence U/s.366 of I.P.C. The other accused-appellants have been sentenced to R.I. for 4 years for offence U/s.366 of I.P.C.

2. While the appeal was pending, this Court was apprised of the fact that appellant no.2-Parsu Muna has expired. Therefore, vide order dated 19.08.2025, the appeal against the deceased appellant No.2 stood abated, in the absence of any motion on behalf of the legal heirs or next friend of the deceased appellant U/s.394 of Cr.P.C. Therefore, the present appeal is confined to appellant nos.1, 3 and 4.

3. None appeared for the appellants despite repeated calls. Therefore, this Court requested Mr. Bijaya Kumar Ragada and Mr. Sasanka Sekhar Das, learned Counsel, who were present in Court, to assist the Court in the capacity of Amicus Curiae and they have readily accepted the same and after obtaining the entire record, assisted the Court very effectively. An exhaustive written note of submission has been filed.

4. Heard Mr. B.K. Ragada, learned Amicus Curiae along with Mr. Sasanka Sekhar Das, learned counsel appearing for the appellants and Mr. Sobhan Panigrahi, learned Additional Standing Counsel for the State.

5. The prosecution case, at its highest, rests on the statement of the prosecutrix. As per her version, about a month prior to the occurrence, on a Monday evening, while she was engaged in cleaning utensils near the bari side of her house, the accused- appellant Pappu suddenly emerged from behind a straw heap, gagged her mouth and forcibly took her to the house of one Petu Ghasi, where she was confined in a room. During the midnight hours, she was taken to village Bharatbahel to the house of a relative described as an elder mother, who provided them food. While they were staying there, Brusabha, the brother of the accused Pappu, visited the house, held some discussion with him and thereafter left. He again returned in the night along with Golekh, Sardul and Parsu, bringing two saris, two blouses and two sayas. The prosecutrix was asked to wear a sari and, upon her hesitation, she was allegedly threatened. It is further alleged that the accused Pappu forcibly removed her chhadi and frock.

It is the further case of the prosecution that thereafter the prosecutrix was taken to Degaon, where they boarded a bus and proceeded to Saintala. From Saintala, she was taken to village Rundimahal to the house of a relation of the accused. The inmates of the said house were requested to allow the accused Pappu and the prosecutrix to stay there for about two months, to which they consented. After taking bath and meals, the others left, leaving behind the accused Pappu and the prosecutrix. On Wednesday night, the accused Pappu slept separately and the prosecutrix slept with a girl of that house. However, on Thursday night, the accused and the prosecutrix slept together while the other family members slept separately. During that night, the accused allegedly committed rape upon her against her will. It is further alleged that the accused continued to commit