Orissa High Court
Mahendra Pradhan vs State Of Odisha .... Opposite Party on 6 January, 2026
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR CRLREV No.560 of 2024
Mahendra Pradhan .... Petitioner
Mr. Trilochan Nanda, Advocate
-Versus-
State of Odisha .... Opposite Party
Mr. P.K. Ray, AGA
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF HEARING:15.09.2025
DATE OF JUDGMENT:06.01.2026
1.Present revision under Section 401 read with Section 397 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr.P.C.') is at the behest of the petitioner challenging the impugned judgment dated 27th February, 2024 passed in connection with Criminal Appeal No. 07/15/84 of 2009-17 by the learned Additional Sessions Judge, Sonepur confirming the order of conviction and sentence directed in Sessions Case No. 33/10 of 2006 by a decision dated 4th March, 2009 of the learned Chief Judicial Magistrate-cum-Assistant Sessions Judge, Sonepur on the grounds inter alia that the same are contrary to law and hence, liable to be interfered with and set aside in the interest of justice.
2. The petitioner faced trial for offences punishable under Sections 376,417,313 and 506 IPC and has been convicted thereunder with a maximum sentence of R.I. of seven years and Page 1 of 17 with fine. In fact, the petitioner has been directed to undergo sentences for the alleged offences separately, but all are to run concurrently with the period of detention to be set off under Section 428 Cr.P.C. The order of conviction and sentence imposed by the court of 1st instance has been confirmed in appeal by the learned Additional Sessions Judge, Sonepur.
3. Briefly stated, the prosecution case is that an F.I.R. was lodged in the year 2006 with an allegation of rape of the victim at the instance of the petitioner. Upon receiving such a report, Tarva P.S. Case No. 30 was registered under the offences alleged corresponding to G.R. Case No. 96 of 2006 of the file of the learned SDJM, Sonepur and thereafter, upon commitment of the case, it resulted in the order of conviction and sentence and ultimately confirmed in appeal by the learned court below upholding the sentences directed against the petitioner. The details of the circumstances leading to the lodging of the F.I.R. stand narrated therein. The said report was lodged by the victim. In course of trial, the prosecution examined as many as nineteen witnesses and exhibited seventeen documents in order to prove the case, however, no evidence was adduced from the side of the petitioner. Considering the evidence on record, the learned courts below reached at a conclusion that the petitioner is guilty of having committed rape on the victim and also other offences including one under Section 313 IPC. The aforesaid decisions at the end of the trial and in the appeal have been challenged on the premise that the same are not legally tenable.
Page 2 of 174. The impugned judgments are at Annexures-1 & 2 and legality thereof have been questioned by the petitioner on the following grounds, such as, (a) the order of conviction and sentence confirmed by the learned court below is against the weight of evidence and therefore, the same is liable to be set at naught; (b) the learned courts below have miserably failed to appreciate the evidence received on record in its proper perspective and hence, committed illegality in directing conviction of the petitioner for the alleged offences;(c) the evidence of the victim in view of contradictions therein is unreliable to its core and the same has been completely ignored by the learned Sessions Court and hence, the confirmation of conviction and sentence vide Annexure-2 deserves to be set aside; (d) the conviction has been based on hearsay evidence considering the testimony of P.W.18 and hence, it cannot be sustained in law; (e) when the F.I.R. was lodged after more than two years and it has been by the victim, namely, P.W.16, who maintained physical relationship with the petitioner, the case of the prosecution could not have been accepted and so the order of conviction and sentence is bad in law, inasmuch as, delay in lodging of the report is fatal in absence of proper explanation offered towards such delay; and (f) that, the learned courts below have not properly appreciated the material evidence and convicted the petitioner and hence, the impugned judgments at Annexures-1 & 2 suffer from legal infirmity.
5. Heard Mr. Nanda, learned counsel for the petitioner and Mr. Ray, learned AGA for the State.
Page 3 of 176. Mr. Nanda, learned counsel for the petitioner would submit that no case of rape is made out, but still the learned courts below held him guilty and imposed sentence of seven years R.I. besides fine. It is further submitted that the evidence received from the prosecution does not lead to a conclusion that the petitioner committed any such offence against the victim, furthermore when, the relationship between the two appears to be a consensual one. Referring to the evidence of P.W. 16, it is contended by Mr. Nanda, learned counsel that the incident of rape has not been reported with the local police and nearly after more than two years, the F.I.R. was lodged and till such time, she had been in a relationship with the petitioner. It is further contended that P.W. 16 claimed to have no consent for the alleged relationship but while under examination claimed her having no desire to marry him. The contention is that despite having no such inclination the victim continued to maintain relationship with the petitioner and at last under the circumstances narrated in the F.I.R., the report was lodged. It is also contended that there has been no evidence on record to suggest that P.W. 16 was impregnated by the petitioner and she had an abortion to make out a case under Section 313 Cr.P.C. It is the submission of Mr. Nanda, learned counsel that the evidence of P.W. 16 is not worthy of acceptance with regard to the allegation of rape and also about her abortion but the learned courts below fell into serious error to hold that the petitioner is responsible for the same and hence, considering the evidence in its entirety as no case has been made out against him, the impugned judgments at Annexures-1 &2 are Page 4 of 17 liable to be set aside followed by an order of acquittal in his favour.
7. On the other hand, Mr. Ray, leaned AGA for the State would submit that the victim lodged the F.I.R. marked as Ext.11 and she narrated her ordeal therein and all the events happened, till the same was lodged. It is contended that the victim was subjected to rape and thereafter, sexually exploited by the petitioner making her medical condition critical with a failed abortion and hence, the learned court below did not commit any illegality in confirming the order of conviction and sentence for the alleged offences. It is contended that the victim did not have the consent or it was not a consent in the eye of law as such consent was obtained from her on the promise of marriage in future and hence, for the sexual mischief committed by the petitioner, he has been rightly held guilty for an act of rape and also abortion as such miscarriage was caused by him without her consent, an offence, which is punishable under Section 313 IPC. It is also contended that there has been no delay in lodging of the F.I.R. and when the petitioner did not agree for marriage with the victim, who had by then been sexually exploited by him, it was reported to the local police and hence, such delay whatever has occasioned has been reasonably explained. The evidence on record received from the side of the prosecution, according to Mr. Ray, learned AGA, was correctly appreciated by the learned courts below and ultimately, with the satisfaction reached at that there is involvement of the petitioner and him having committed rape on the victim and also caused her miscarriage besides other Page 5 of 17 mischief having taken place rightly convicted under Section 376,313,417 and 506 IPC, which was confirmed in appeal, hence, not to be interfered with thereby dismissing the revision for being devoid of any merit.
8. As earlier discussed, the father of the victim is examined as P.W.1 and according to him, as deposed during trial, he was informed about the involvement of the petitioner, who had given tablets for abortion of her pregnancy. P.W.1 deposed that the victim daughter disclosed having taken the tablets for the abortion after revealed to him by his wife, namely, P.W.18, whereafter, upon such disclosure, she was taken to the hospital, where doctor referred her to DHH, Balangir, from where, on being advised, to Burla. As per P.W.1, the victim's pregnancy was aborted and when he requested the petitioner to marry her, it was denied by him, whereafter, the F.I.R. i.e. Ext. 11 was lodged. In course of cross-examination, P.W.1 revealed that he had no knowledge about the sexual relationship of his daughter with the petitioner and not even having the knowledge about the ingestion of tablets for abortion and at the time of treatment, the victim was admitted in the hospital at Balangir and stayed there for three to four days. Similarly, P.W.18 has deposed that at the time of the alleged incident, which was two years and four months earlier, the victim daughter was a minor aged about 17 years and since she complained of acute pain in her abdomen and the reason behind the same was asked, the fact of being pregnant was disclosed to her and by then, the pregnancy was two and half months old and such pain started only after taking tablets given to her by the petitioner for Page 6 of 17 abortion. On inquiry, as per P.W.18, the victim claimed to have been forcibly subjected to rape and was threatened by the petitioner with dire consequences, if the incident is revealed to anyone but thereafter, continued to cohabit till she became pregnant. From P.Ws.1 and 18, it is made to reveal that both of them being the parents of the victim did not have the knowledge about the incident of rape and subsequent relationship between the victim and the petitioner, which is claimed to be under duress. P.W.18 was cross-examined by the defence, during and in course of which, it was reiterated that she had no knowledge about the alleged incident of rape and could know about the same only after the victim complained of pain. The victim as P.W.16 deposed that only about three years back from then, on the day of occurrence between 10.00 A.M and 11.00 A.M., while she had returned home after taking bath in the nearby river and was changing her clothes inside their house, the petitioner forcibly caught hold of her and thereafter, on the point of knife, committed rape in spite of protest and during that time, the latter threatened to kill her elder brother, if the incident was made public. The further evidence of P.W.16 is that fifteen to twenty days later, the petitioner once again came to their house and promised to marry her and kept physical relationship at that time, which was continued thereafter. But about a year and two months back, her monthly cycle stopped and hence, she knew about the pregnancy, later to which, she requested the petitioner to marry her but instead, was given tablets for abortion but with an assurance of marriage in future after termination of pregnancy and shortly after, on the next day itself, bleeding started and she felt pain in Page 7 of 17 her stomach and it became acute, hence, disclosed everything to her mother and thereafter, her father was informed. In course of cross-examination, P.W.16 deposed that after the first incident of rape about three years back, she did not disclose the same to anyone and before the act of rape, the petitioner did not promise to marry her. As such promise was given after the incident to which she does not agree. It has been deposed by P.W.16 is that the incident was not disclosed to her family members out of fear and because of the threat administered by the petitioner but continued to cohabit with the latter once in a fortnight or a month and it was on the assurance of marriage. It has been claimed by P.W.16 that on all such occasions, she was forced to cohabit as never consented to the same. According to P.W.16, she never had any love towards the petitioner nor the desire to marry him. With the above evidence on record, the submission of Mr. Nanda, learned counsel for the petitioner is that it was not an act of rape but a consensual relationship. It is submitted that despite having no consent for the sexual relationship, P.W. 16 continued to cohabit with the petitioner, with whom, she never desired to marry. Whereas, according to Mr. Ray, learned AGA for the State, everything happened involving P.W.16 with passive consent obtained from her, which is no consent in the eye of law. The Court is to examine, whether, there has been consent of P.W.16, though, denied by her looking at the material evidence and whether, she had a miscarriage due to the mischief committed by the petitioner with such other overacts committed by him.
Page 8 of 179. If there is no consent, it becomes an act of rape publishable under law. In case of a minor, consent is immaterial. If under a misconception of fact consent is obtained, it is no consent either. If someone consented to a sexual encounter under fear or misconception, it is not a consent in view of Section 90 IPC. A consent is not such a consent as is intended if the same is given by a person under fear of injury or misconception of fact and if the person doing the act knows or has reason to believe that the consent was obtained in consequence of such fear or misconception as stipulated therein. It also stipulates that consent of an insane person or child below 12 years of age is no consent. Such is not a consent acceptable under law, if it is given by a person who from unsoundness of mind or intoxication is unable to understand the nature and consequence of that to which he gives the consent and in case of a child, unless the contrary appears from the context, any such consent is not a consent, if he is below 12 years of age. In the case at hand, according to the prosecution, it was an act of rape in the first place and the subsequent events followed with the sexual mischief committed by the petitioner with a consent under a misconception of fact or injury because of the threat perception, hence, an offence of rape is well made out, a plea which was accepted by the learned courts below. As far as the victim, namely, P.W. 16 is concerned, her age was claimed to be 17 years by the time of her examination held in the month of August, 2007. It is admitted that the report was lodged at the P.S. after two and half years from the incident of rape. But the prosecution never pleaded that P.W.16 to be a minor. No such question arose during trial regarding the consent of P.W.16 Page 9 of 17 with any such plea advanced by the prosecution that it was immaterial, she being a minor. In fact, the school record of P.W.16 revealed her date of birth as 17th July, 1984 having been admitted on 17th July, 1989. The Headmaster of the concerned school was examined as P.W.9 and he proved the relevant entries in the Admission Register. A teacher of the said school as P.W.10 proved a copy of the original entry of the said Register revealing the date of birth of P.W. 16 as 17th July, 1984. By considering the school record and accepting the same at its face value because such entry in the Register contained the signature of her guardian, she was to be accepted as 19 years old by the time of the incident of rape and had become 22 years old, when the F.I.R was lodged. No other evidence except the above is on record with regard to the age of the victim. In fact, both the witnesses, namely, P.Ws.9 and 10 proved the age of the victim referring to the Admission Register of the school. The prosecution has not examined them under Section 154 of the Indian Evidence Act to elicit any such evidence regarding the admitted age in the school record as being incorrect. In view of such evidence received from the side of the prosecution, it has to be concluded that even by the time of the incident of rape alleged by P.W.16, she was not a minor. The evidence of P.Ws.1 and 18 regarding the age of the victim cannot therefore be accepted as both of them revealed her age as 17 years at the time when the alleged incident of rape happened with her. Having arrived at a conclusion that the evidence suggested age of P.W.16 as above 18 years by the time of the incident of rape, the question is, whether, she had Page 10 of 17 any consent or it was a passive consent or a consent under misconception of fact or fear of injury?
10. If there was no consent, a question would arise why P.W.16 did not immediately inform about the alleged incident of rape at least to her parents. The reply to the same as made to reveal from the record is that the victim could not do so out of fear. According to P.W.16, she had no consent from day one, however, it is admitted by the victim that she continued to have relationship with the petitioner after a promise of marriage in future. P.W.16 openly claimed that there was no such promise at the time of alleged incident of rape. It is deposed by P.W.16 that after the rape was committed by the petitioner, he offered the promise to marry her. Under such circumstances, referring to the evidence of P.W.16, it cannot be said that such is a case with consent obtained under misconception of fact. It has been claimed further that P.W.16 could not protest and it was a consent under fear of injury. According to the victim, the petitioner committed rape on her on the point of a knife. But soon after the above incident barely a fortnight later, P.W.16 maintained physical relationship with the petitioner. In fact, it has been the evidence of the victim that she had no consent even at that point of time, till the very end and never desired to marry the petitioner. In fact, it has been deposed by P.W.16 that she never had any love towards the petitioner and not inclined to marry him either. Each and every incident after the alleged rape is claimed to have been without consent according to the evidence of P.W.16. If someone is subjected to rape and Page 11 of 17 it is without consent or such consent has been obtained under fear of injury, which may be said to have prevailed upon her for few days and must have disappeared in course of time but continued to have physical relationship with the accused, according to Court, it becomes really difficult to ascertain whether it was indeed an act of rape in view of her unusual conduct. Admittedly, the incident of rape was not immediately revealed by P.W.16. It was not brought to the notice of P.Ws.1 and 18 by the victim long after. It could be that P.W.16 failed to muster the courage to disclose the incident to anyone, but soon after, P.W.16 did maintain sexual relationship with the petitioner and continued to have such relationship at regular interval at least once in a month as deposed by her during trial. Such conduct of P.W.16 cannot be said to be without consent for the sexual promiscuity. In fact, the Court finds that such relationship was kept confidential till the last when the victim fell sick and developed a medical condition, which needed treatment. The Court is of the view that had there been no such exigency arisen due to the illness of P.W.16, the relationship between her and the petitioner would not have become public. It cannot be claimed by the prosecution that the petitioner had given the promise of marriage and then cohabited with the victim, who on her own deposed that her consent was not obtained in such manner. It does mean, it was claimed to be an act of rape simpliciter without consent. Since, P.W.16 was challenged and was threatened allegedly with a knife, she was under fear of injury and hence, had to consent. If someone is having no consent and such consent was obtained from the victim under fear of injury, once such fear evaporates, she Page 12 of 17 would be free to make the revelation but in the case at hand, P.W.16 did not do so and not only that, she developed sexual relationship with the petitioner and maintained the same quite often for more than two and half years. By such conduct of P.W.16, the Court is not inclined to accept the plea of the prosecution that her consent is no consent but a consent under fear of injury. The consent under a misconception of fact for having received a promise of marriage from the petitioner is also liable to rejection since P.W.16 herself admits that no such promise was offered to her any time before the act of rape. Considering the evidence of P.W.16 as a whole, it was not a case of passive consent or a consent under a misconception of fact or fear. Had there been no further sexual encounters with the petitioner and even though some amount of delay had taken place in reporting the alleged incident with local police, it would have been well understood that the victim was really under duress, however, quite strangely, she neither revealed the incident to anyone or at least to her family members nor stayed away from the petitioner thereafter, but instead, continued to have physical relationship with him for quite a long period till she fell sick and was admitted in the hospital for having taken tablets for abortion. Interestingly, the evidence of P.W.16 is that she had no consent ever from the beginning till the very end and not even inclined to marry the petitioner. In such a situation to claim that consent was on account of a misconception of fact on account of a promise of marriage received from the petitioner and any such plea of fear by the prosecution falls flat. It does mean, P.W.16 never intended to marry or had any desire at any point of time or longed for a Page 13 of 17 stable life with the petitioner and still continued to maintain relationship with him. So, the irresistible consideration of the Court is that it is difficult to accept the plea that the victim had no consent and for that, the petitioner is guilty of rape.
11. As regards, the offence under Section 313 Cr.P.C., the evidence reveals that P.W.16 had taken the tablets and it was given to her by the petitioner. Though, P.W.16 was cross- examined by the defence, nothing could be elicited from her denying the above claim. It is admittedly a fact that P.W.16 developed medical complications having taken tablets for abortion. It is denied by the petitioner that any such mischief was committed by him involving P.W.16. From the record, it is made to reveal that the defence attempted to create an impression about P.W.16 having relationship with someone else but no evidence has been adduced to substantiate any such plea of the petitioner. The evidence of P.W.14 is that he had issued the discharge ticket in favour of P.W.16, who had been admitted at the VSS Medical College & Hospital, Burla on 26 th May, 2006 as an indoor patient till 8th June, 2006. It is deposed by P.W.14 that the victim had problem of septic abortion and in course of diagnosis, her abdomen was filled with pus, which had to be removed after surgical intervention. According to P.W.14, the stitches were removed on 6th June, 2006 and thereafter, P.W.16 was discharged. The discharge ticket has been marked as Ext.8 with a signature of P.W.14 thereon as Ext.8/1 and claimed that she had abortion before being admitted in the Ward. In course of cross-examination, P.W.14 confirmed that it was a case of septic abortion of pregnancy of Page 14 of 17 P.W.16. It has been clarified by P.W.14 during further cross- examination that the intake of tablets by P.W.16 was the cause behind abortion of pregnancy. It has been deposed further that if the abortion is incomplete, there may be infection and accumulation of pus. The evidence of P.W.14 is clear enough to reach at a conclusion that P.W.16 was admitted as an indoor patient and was treated for infection arising out of abortion and complications thereof. It has been the evidence of P.W.16 that she was given 12 tablets by the petitioner and after having consumed the same, the complication started and hence, she was admitted in the hospital. Such evidence of P.W.14 is corroborated by P.W.17, an Assistant Surgeon at DHH, Balangir. P.W.16 was taken to the hospital at Balangir in the month of May, 2006 and was admitted there as an indoor patient and as per P.W.17 on a clinical diagnosis, it was revealed that she had a medical condition for incomplete abortion with Acute Renal Failure (ARF). According to P.W.17, there was septic abortion due to outside interference and hence, P.W.16 was referred to VSS Medical College & Hospital, Burla for further treatment and proved the discharge slip dated 20th May, 2006 as Ext. 12 and his signature thereon as Ext.12/1. The pathological report has been proved as Ext.13 by P.W.17 and signature of doctor appearing therein as Ext.13/1. In course of cross-examination, P.W.17 elicited that P.W.16 was suffering from ARF and possibly related to incomplete abortion but claimed that he did not ascertain the cause of septic abortion. From the above evidence, it is made clear that P.W.16 had a medical condition for septic abortion and apparently on account of having consumed tablets given to Page 15 of 17 her by the petitioner and none else. So, it can be said that the petitioner risked the life of P.W.16 and in an attempt to avoid her being pregnant had given tablets for causing miscarriage apparently without the latter's consent. But the question is an offence under Section 313 I.P.C. is shown to have been made out provided the miscarriage has been caused without the women's consent. The definition of "causing miscarriage"
under section 312 IPC means whosoever voluntarily caused a woman with child to miscarry and the same is not in good faith in order to save the life of the woman would be an offence punishable with imprisonment which may extend to seven years and be also liable to fine. According to P.W.16, she was administered the tablets by the petitioner and it was apparently not for the purpose of saving her life, hence, it can be said that such conduct in carrying out the miscarriage is punishable under Section 312 IPC. Whether it was with or without the consent of P.W.16 that she was made to consume the tablets and as a result, it led to a miscarriage is difficult to ascertain considering her evidence during trial. But, it is clear that miscarriage has taken place and the attempt was to ensure abortion of pregnancy and the same is conspicuously revealed from the evidence of P.W.16 and the petitioner being entirely responsible for the same with such other mischief committed by him. However, having regard to the fact that the alleged incident is nearly two decades old, the Court, in the peculiar facts and circumstances of the case, is inclined to modify the sentences for other offences and substitute it for the period already undergone by the petitioner as an UTP.Page 16 of 17
12. Hence, it is ordered.
13. In the result, the revision stands allowed in part. As a necessary corollary, impugned judgment dated 27th February, 2024 passed in connection with Criminal Appeal No. 07/15/84 of 2009-17 by the learned Additional Sessions Judge, Sonepur confirming the order of conviction and sentence directed in Sessions Case No. 33/10 of 2006 by a decision dated 4 th March, 2009 of the learned Chief Judicial Magistrate-cum- Assistant Sessions Judge, Sonepur is hereby set aside to the extent as aforesaid with acquittal of the petitioner for the offence of rape punishable under Section 376 IPC followed by the sentences for other offences accordingly modified for the reason stated herein before.
(R.K. Pattanaik) Judge Kabita/Balaram Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Designation: PERSONAL ASSISTANT Reason: Authentication Location: OHC, CUTTACK Date: 09-Jan-2026 15:56:15 Page 17 of 17