THE HIGH COURT OF ORISSA AT CUTTACK CRA No.263 of 1995 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973)

Bijoy Kumar Kand ……. Appellant -Versus-

State of Orissa ……. Respondent For the Appellant : Mr. Pratik Nayak, Advocate For the Respondent : Mr. Aurobinda Mohanty, ASC CORAM THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 10.02.2026 :: Date of Judgment: 19.02.2026 S.S. Mishra, J. The present Criminal Appeal, filed by the appellant under Section 374 of Cr.P.C. is directed against the judgment and order dated 18.09.1995 passed by the learned C.J.M.-cum-Assistant Sessions Judge, Mayurbhanj, Baripada in Sessions Trial Case No.54/194 of 1994, whereby the appellant has been convicted for the offence under Sections

341/376 of I.P.C. and on that count, he has been sentenced to undergo S.I. for one month for the offence under Section 341 of I.P.C. and to undergo R.I. for seven years and to pay a fine of Rs.500/-, in default to undergo R.I. for one month for the offence under Section 376 of I.P.C.

2. Heard Mr. Pratik Nayak, learned counsel for the appellant and Mr.

Aurobinda Mohanty, learned Additional Standing Counsel for the State. 3. The prosecution case, in terse and brief, is that on 20.09.1994 at about 8:30 P.M., while the victim and Kumari Jayanti (P.W.3) were returning along the village road after purchasing chenachur from a nearby shop, the accused allegedly intercepted them. It is alleged that the accused gagged the victim by placing a cloth over her mouth and forcibly took her to a secluded place, where he committed rape upon her. Upon witnessing the occurrence, Kumari Jayanti (P.W.3) immediately ran to her house and informed her father about the incident. Thereafter, the complainant and his brother proceeded to the spot but found neither the victim nor the accused present there. A search was conducted with the assistance of other co-villagers, during which the victim was found in the house of the accused. It is further alleged that when the father and uncle of the accused were questioned, they assured the complainant that the victim would be married to the accused and requested that the matter not be reported to the police. On the following day, the victim returned to her parental home and disclosed that the accused had committed rape upon her and that she had been driven away by the family members of the accused. On 21.09.1994 in the evening, a village meeting (panch) was convened to resolve the dispute; however, the accused and his family members did not attend the meeting and, instead, suggested that a case be filed. Consequently, no decision could be arrived at in the said meeting. On 22.09.1994, a written report was submitted before the O.I.C., Badasahi Police Station. It is alleged that the O.I.C. did not send the victim for medical examination. Subsequently, on 25.09.1994, the complainant again approached the Police Station, but the O.I.C. expressed his inability to take action in the matter. Accordingly, a complaint petition was filed on 26.09.1994, wherein the age of the victim was mentioned as about 16 years. Upon receipt of the said complaint petition, the learned S.D.J.M., Baripada, recorded the initial statement of the complainant, directed that the victim be sent for medical examination, and conducted an inquiry into the matter. Upon completion of the inquiry, the learned Magistrate took cognizance of the offences under Sections 341/376 of the I.P.C. against the accused and committed the case to the Court of Session for trial.

4. The prosecution has examined seven witnesses to substantiate its case. Out of them, P.W.1 was the lady doctor, who examined the victim; P.W.2 is the elder father of the victim, who heard about the occurrence from the victim; P.W.3 is the cousin sister of the victim, who deposed that the accused took the victim putting a napkin on her mouth; P.W.4 was a witness, who heard about the occurrence; P.W.5 was the doctor, who conducted the o