Disposed

Muralidhar Mahar v. State

Orissa HC9 Dec 2024CRA/256/2001

Case brief

AI extract

What is this about?

Rape appeal against conviction under Section 376 IPC. Court upheld the conviction, finding the victim a minor based on the doctor's age opinion and her testimony, but released the appellant under the Probation of Offenders Act considering custody already undergone and passage of over 23 years.

What did the court decide?

Conviction and sentence upheld; appellant directed to be released under the P.O. Act upon appearing before the Asst. Sessions Judge-cum-C.J.M., Deogarh within one month.

Muralidhar Mahar Vs State — Criminal Trial and Appeal | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.256 of 2001

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Muralidhar Mahar

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..... Appellant Mr. D.R. Parida, Advocate

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-versus-

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State of Odisha

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..... Respondent Mr. C.K. Pradhan, AGA

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CORAM:

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THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY ORDER

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09.12.2024

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Order No. 21

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This matter is taken up through hybrid mode.

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Heard Mr. D.R. Parida, learned counsel appearing for the Appellant and Mr. C.K. Pradhan, learned counsel appearing for the Respondent.

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The present appeal has been filed by the Appellant-Accused challenging Judgment dtd.17.12.2001 passed by the learned Asst. Sessions Judge-cum-C.J.M., Deogarh in S.T. Case No. 199/20 of 2001. Vide the said Judgment the Appellant-Accused has been convicted to undergo R.I. for 7 years 6 months and to pay a fine of Rs.1,000/- with default R.I. for 6 months for the offence under Sec. 376 of the Indian Penal Code.

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Learned counsel for the Appellant contended that basing on the F.I.R. lodged by the victim, the prosecution case was set into motion and after completion of the investigation charge sheet was submitted for the offence under Sec. 376 of the I.P.C..

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4.1. It is contended that learned Asst. Sessions Judge without proper appreciation of the evidence so placed, convicted the Appellant for

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Page 1 of 5.

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the offence under Sec. 376 of the Indian Penal Code and sentenced him to undergo R.I. for 7 years 6 months and to pay fine of Rs.1,000/- and on default R.I. for 6 months.

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4.2. Learned counsel for the Appellant contended that Appellant was inside custody for around 2 years and 6 months prior to and during the trial. It is also contended that taking into account the stand of the Appellant that it is a case of consensual sex and Appellant when expressed his intention to marry the victim, he was allowed to go on bail by this Court vide order dtd.17.03.2003. It is contended that after being released on bail the Appellant found that the victim in the meantime has already got married and accordingly there was no occasion on the part of the Appellant to marry the victim.

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4.3. It is also contended that the F.I.R. in question was lodged after around four (4) months of the alleged incident and the allegation made in the F.I.R. has not been supported by the Doctor who was examined as P.W. 7. Statement of the said P.W. reads as follows:-

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“On 26.1.2001 I was the Medical Officer at Deogarh District Headquarters Hospital. On that day on police requisition I examined, Ghasiani Mahar D/o Dhabala Mahar of village Kunjamara, P.S. Naktideol and found the followings:

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2. (i) She has 29 number of teeth.

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(ii) Physically average body build with good mental condition

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(iii) Breast well develop, no external injury.

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(iv) axillary hair not develop.

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3. On examination of private part, Scanty pubic hair, no pubic hair, no mating sample of pubic hair collected and handed over to police.

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Hymen was absent. No external injury was found on the private part. Vaginal canal was admitting two fingers easily. No internal injury was found. Utrious was antiverted normal size.

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Page 2 of 5.

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4. On examination of vaginal swab no spermatozua was seen and the sample handed over. Her L.M.P. was five months back. There was no sign of pregnancy. On urin test, it was found that there was no [sign of pregnancy. The blood group is B+ve.

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5. On X-Ray of right wrist, right elbow, right shoulder, right heap vide plate No. 1122 Dt. 26.1.2001 of District Headquarters Hospital Deogarh. It was determined the age of the girl was 15 to 17 years.”

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4.3. It is contended that since the allegation of rape has not been proved by the concerned Doctor, who was examined as P.W. 12 and the fact that in spite of his willingness to marry the victim he could not do so as the victim had already married by the time he was released on bail by this Court on 17.03.2003, the order of conviction and sentence passed vide the impugned Judgment is not sustainable in the eye of law.

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Mr. C.K. Pradhan, learned Addl. Govt. Advocate on the other hand while supporting the impugned order of conviction and sentence contended that since the victim was a minor at the relevant point of time, no question of consensual sex can be attracted.

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5.1. It is contended that since the Appellant kept physical relationship with the victim with an assurance that he will marry and subsequently he backtracked, the F.I.R. was lodged by the victim. Therefore, the stand taken by the Appellant that there was delay in lodging the F.I.R. is not acceptable. It is also contended that since with a promise of marry the victim, Appellant kept physical relationship with the accused and the accused when refused to marry the victim, the F.I.R. was lodged. So the ground taken that the F.I.R. was lodged after 4 months of the alleged occurrence, is not acceptable.

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Page 3 of 5.

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5.2. It is also contended that since the victim was examined after about 4 months of the alleged incident, evidence of the Doctor cannot be a ground to say that the Appellant has not committed the offence.

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5.3. It is contended that since the victim who was examined as P.W. 1 has corroborated, the allegation made against the Appellant in his examination in chief as well as cross examination, no illegality or irregularity can be found with the impugned order of conviction and sentence. Statement of the victim so laid as P.W. 1 reads as follows:-

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“I know the accused. I am staying in my uncle's house to continue my study in the school. I stayed in the house of my maternal Uncle when I was five years old and till now continuing there. Last year I was a student of class -VII. In the last year in the month Aswina my maternal aunt was hospitalised at Angul Hospital due to illness. My maternal uncle and his mother were attending my maternal aunt at the hospital. I was alone in the house. The accused came to the house at 10 P.M. (night) and requested me for sexual intercourse. I did not agree. The accused assured me to marry and again requested for sexual intercourse. The accused belong to my caste. The house of the accused is two to three houses apart from the house of my maternal uncle. When assured me to marry I agree for sexual intercourse. Then the accused committed sexual intercourse with me. During the absence of my maternal uncle and aunt the accused committed sexual Intercourse with me for five times. The accused gave me some tablets to take so that I would not be pregnant. By taking those tablets I was not pregnant. My maternal uncle and aunt returned from hospital after seven days. I reported about the incident to them. The accused did not agree to marry me.

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2. I filed an application before the President of the village narrating the incident. A meeting was called on my application. The villagers called the accused to the meeting but the accused was absconded. The parents of the accused attended the meeting but they expressed their ignorance about the occurrence. I lodged F.I.R. at Kundheigola P.S. Ext.1 is the F.I.R. and Ext. 1/1

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Page 4 of 5.

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is my signature. Police recorded my statement. On police requisition I was examined by the doctor at Kundheigola.

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3. I was aged about 12 years when the accused committed sexual intercourse with me.”

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Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that the Appellant was implicated in the alleged offence basing on the F.I.R. lodged by the victim herself. It is found that the victim was a minor at the relevant point of time and in that regard this Court relies on the statement of the Doctor, who clearly deposed that the age of the victim will be around 15 to 17 years.

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6.1. Considering the evidence of the victim as P.W. 1 coupled with the other available materials, this Court finds no illegality or irregularity with the impugned order of conviction and sentence so passed against the Appellant. However, considering the fact that the Appellant was inside custody for around 2 & ½ years prior to his conviction and sentence and the fact that in the meantime more than 23 years have passed, this Court while is not inclined to interfere with the impugned order of conviction and sentence, directs for release of the Appellant under the provisions of P.O. Act. Appellant is directed to appear before the learned Asst. Sessions Judge-cumC.J.M., Deogarh within a period of one (1) month hence. Learned Asst. Sessions Judge is directed to do the needful in the matter.

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The appeal is accordingly disposed of.

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Signature Not Verified

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Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Sneha Date: 16-Dec-2024 14:51:55

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(BIRAJA PRASANNA SATAPATHY) Judge

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Page 5 of 5.

Muralidhar Mahar v. State

Case brief

What is this about?

What did the court decide?

Muralidhar Mahar v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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