Dismissed¶48

Dambarudhar Sarabu v. State

Orissa HC21 Aug 2025CRLA/562/2006

Case brief

AI extract

What is this about?

CRLA No.562 of 2006, High Court of Orissa at Cuttack, Dambarudhar Sarabu v. State of Orissa, S.S. Mishra J., decided 21.08.2025: S.374 CrPC appeal against conviction under Sections 352/451 IPC (trial Court had acquitted under Sections 457/376 IPC and Section 3(1)(xii) SC/ST (PoA) Act); conviction and sentence affirmed, appeal dismissed as nothing survived, sentence already undergone and appellant in grave ill-health.

What did the court decide?

The judgment of conviction and order of sentence passed by the learned Additional Sessions Judge-cum-Special Judge, Nabarangpur vide the impugned judgment dated 19.12.2006 is affirmed. ¶48

Dambarudhar Sarabu Vs State — Orissa HC (2025) — LawSathi Research

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THE HIGH COURT OF ORISSA AT CUTTACK

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CRLA No.562 of 2006

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(In the matter of an application under Section 374 of the Criminal Procedure Code, 1973)

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Dambarudhar Sarabu ……. Appellant -Versus-

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State of Orissa ……. Respondent

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For the Appellant : Mr. D. K. Mishra, Advocate For the Respondent : Mr. Raj Bhusan Dash, ASC

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CORAM :

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THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

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Date of Hearing: 21.08.2025 :: Date of Judgment: 21.08.2025

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S.S. Mishra, J. The present Criminal Appeal, filed by the appellant-

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Dambarudhar Sarabu under Sections 374 of the Cr.P.C., is directed

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against the judgment and order dated 19.12.2006 passed by the learned

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Additional Sessions Judge-cum-Special Judge, Nabarangpur in C.T.

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Case No.28 of 2004, whereby the present appellant has been convicted

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for the offence under Sections 352/451 of the I.P.C. and on that count, he

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was sentenced to undergo R.I. for one month for the offence under Section 352 of I.P.C. and R.I. for three months for the offence under Section 451 of I.P.C.

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2. Heard Mr. D. K. Mishra, learned counsel for the appellant and Mr.

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Raj Bhusan Dash, learned Additional Standing Counsel for the State.

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3. The prosecution case in terse and brief is that on 07.12.2003 at about 7. 00 P.M., the husband and the son of the informant had gone out of the village and the informant was alone. When she was cooking food inside the house, at that time, the accused-appellant entered into the house and dragging her to a mango-tope, made her lie down on the ground and committed sexual intercourse against her will. It is alleged that when the husband and the son of the informant reached, the appellant fled away from the spot. On the following day, there was a meeting held in the village for settling the dispute, but nothing could be settled. Hence, the F.I.R. was registered being Tentulikhunti P.S. Case No.70 dated 08.12.2003.

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4. On the basis of the aforesaid allegations, the police investigated the case and on 17.01.2004, filed the charge-sheet for the offence

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punishable under Sections 457/376 of I.P.C. read with Section 3(1)(xii) of SC/ST (PoA) Act against the appellant. From the investigation, it was revealed that the victim/informant belongs to Schedule Tribe and the accused-appellant belongs to the general caste. On the stance of denial and claim of trial, the appellant was put to trial after framing of charges of the offences, as mentioned above.

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5. The prosecution in order to prove its case examined as many as thirteen witnesses. Out of whom, P.W.1 is the informant and the victim. P.W.2 is the husband of the informant and P.W.3 is the son of P.W.1. P.Ws.4, 5 and 10 are the Gram Rakhi, who attended the investigation of the police. P.Ws.6, 7 and 13 are the independent villagers. P.Ws.8 and 9 are the Revenue Personnel, who enquired about the caste of the parties. P.W.12 is the doctor, who examined the victim and P.W.11 is the I.O. of the case.

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6. The learned trial Court after analyzing the evidence of the informant/victim (P.W.1) and other witnesses have arrived at a conclusion that the accused person is not guilty for the offences under

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457/376 of I.P.C. read with Section 3(1)(xii) of the SC & ST (PoA) Act

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rather he is held guilty of the offence under Section 352/451 of I.P.C

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and on that count, sentence has been awarded. Relevant part of the said judgment is reproduced hereunder:-

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“8. P.W.1 has stated that she had no injury. However the doctor P.W.12 has stated that he found two injuries on the person of the victim. It has been alleged by the prosecution that P.W.1 was inflicted injuries due to the dragging. The injuries were simple and P.W.1 has stated that she had no injury. However the fact remains that there was use of criminal force by the accused. The accused used force against P.W.1 without her consent. The same was likely to cause injuries and also the act of the accused was likely to cause annoyance and fear. The evidence of P.W.1 clearly indicates that it was criminal force. The accused used such criminal force without any provocation. So he is liable under section 352 I.P.C.

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9. The accused entered into the house of P.W.1. He was drunk. He had malafide intention in going to the house of P.W.1. Her husband and son were absent. P.W.1 was alone. In a drunken condition the accused dragged P.W.1. He has used criminal force against her. So entering into the house of P.W.1 is an act of criminal trespass into a building used as human dwelling and accordingly the same becomes act of house trespass. The accused never did any act of house breaking. The trespass by the accused was not in surreptitious manner. The accused did not do anything to conceal his presence. There was

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absolutely no act of lurking house trespass and the charge u/sec. 457 I.P.C. cannot stand. But the accused committed house trespass for using criminal force against P.W.1. He went to the house of P.W.1 to commit an offence punishable with imprisonment as provided under section 352 I.P.C. Accordingly he is guilty under section 451 I.P.C. for the act of house trespass.

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10. P.W. 1 has stated that she belongs to Schedule Tribe and that the accused is goldsmith. She has not stated if the accused does not belong to schedule caste, or Schedule Tribe. No other witness has stated about the matter. P.W.8 the Tahasildar has stated to have forwarded the report of the R.I. The R.I. has been examined as P.W.9. He has stated that the victim belongs to schedule caste though the victim herself has stated that she belongs to schedule tribe. The report of P.W.9 has been marked as Ext.4. In this document the R.I. has indicated that the victim belongs to schedule tribe. So, there is contradiction in the report and the statement of P.W.9. There is lack of satisfactory evidence regarding the caste of the parties. It is further found that P.W.11 conducted almost the entire investigation of the case. The offence allegedly committed is under section 3(1)(xii) of the S.C. & S.T. (P.A.) Act and the matter should have been investigated by a police officer not below the rank of D.S.P. There is no material regarding the investigation by a police officer of the rank of the D.S.P. So the case is bad. There is also no material to ascertain whether the accused took the advantage of the position of his caste and if the victim could not have been exploited, if she was not a member of the schedule Tribe. There is also no material to believe the allegation of sexual exploitation. P.W.1 the victim

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has alleged to have been only dragged. In the present case the prosecution has not been able to adduce satisfactory evidence to show that a women belonging to schedule tribe was exploited sexually. So the charge under section 3(1)(xii) of the S.C.& S.T(PA) Act is bound to fail.

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11. In the result, the prosecution has been able to prove its case in part. The accused is found not guilty of the charge u/sec. 457/376 I.P.C. and u/sec.3(1) (xii) of the S.C.& S.T. (PA) Act. But he is found guilty u/sec.352/451 I.P.C. and is convicted thereunder.”

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7. Being aggrieved by the judgment of conviction and order of sentence passed by the learned Additional Sessions Judge-cum-Special Judge, Nabarangpur, the present appeal has been preferred by the appellants.

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8. Mr. Mishra, learned counsel for the appellant, submitted that the appellant was charged under Sections 457/376 of the I.P.C. read with Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. However, vide judgment and order dated 19.12.2006, the learned trial Court acquitted the appellant of the offence under Section 3(1)(xii) of the SC/ST (PoA) Act basing on the provision that the investigation was conducted by P.W.11, an officer below the rank of Deputy Superintendent of Police, in contravention of Rule 7 of

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the SC/ST (PoA) Rules, 1995. The learned trial Court, however, found the appellant guilty for the offence under Section 451/352 of I.P.C. and on that count sentence has been awarded.

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9. Mr. Mishra, learned counsel further submitted that the appellant

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was arrested on 09.12.2003 and forwarded to Court on 10.12.2003. He was released from the custody on 02.07.2004. Therefore, the appellant remained in custody for about six months twenty-two days.

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10. This Court vide order dated 17.07.2025, sought for a report from the I.I.C. of the concerned P.S. regarding the wellbeing and whereabouts of the appellant. Pursuant thereto, the I.I.C., Tentulikhunti P.S. has filed a report dated 30.07.2025 inter alia stating that although the appellant is surviving but his heath condition is terrible. He is undergoing treatment of paralysis and is also bed ridden since last five to six years. Some photographs are also enclosed, which indicates that the appellant is not in good health condition.

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11. Regard being had to the period of custody the appellant has already undergone and his health condition, Mr. Mishra, learned counsel for the appellant submits that he would not press this appeal in so far as

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conviction is concerned and confined his argument to the quantum of sentence. He further submitted that the records reveal the appellant has

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already undergone the entire sentence awarded to him. Therefore, on sentence also nothing needs to be heard.

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12. In view of the submission made by the learned counsel for the appellant, nothing survives in the appeal. Accordingly, while affirming the judgment of conviction and order of sentence passed by the learned Additional Sessions Judge-cum-Special Judge, Nabarangpur vide the impugned judgment dated 19.12.2006, the appeal stands dismissed.

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The High Court of Orissa, Cuttack. Dated the 21^st August, 2025/ Swarna

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Signature Not Verified

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Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 22-Aug-2025 17:06:17

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Procedural history

How this case reached the court

AI extract

Order under challenge
Judgment and order dated 19.12.2006 in C.T. Case No.28 of 2004 convicting the appellant under Sections 352/451 IPC and sentencing him to R.I. for one month (S.352) and R.I. for three months (S.451), after finding him not guilty under Sections 457/376 IPC and Section 3(1)(xii) SC/ST (PoA) Act.¶12-14
Additional Sessions Judge-cum-Special Judge, Nabarangpur · 19.12.2006
Prior proceeding
FIR registered as Tentulikhunti P.S. Case No.70 dated 08.12.2003 after a village meeting failed to settle the dispute arising from the alleged incident of 07.12.2003.¶19
Prior proceeding
Police filed charge-sheet on 17.01.2004 for offences under Sections 457/376 IPC read with Section 3(1)(xii) SC/ST (PoA) Act; investigation revealed the victim/informant belongs to Schedule Tribe and the accused-appellant to the general caste; appellant put to trial on denial.¶20-22
Prior proceeding
Trial conducted with thirteen prosecution witnesses (P.W.1 informant/victim, P.W.2 husband, P.W.3 son, P.W.12 doctor, P.W.11 I.O. among others); trial Court concluded the accused not guilty under Sections 457/376 IPC and Section 3(1)(xii) SC&ST (PoA) Act but guilty under Sections 352/451 IPC.¶26-27
Prior proceeding
As submitted by learned counsel, the appellant was arrested on 09.12.2003, forwarded to Court on 10.12.2003 and released on 02.07.2004, remaining in custody for about six months twenty-two days.¶42
Prior proceeding
This Court vide order dated 17.07.2025 sought a report from the I.I.C. of the concerned police station regarding the wellbeing and whereabouts of the appellant.¶43
Prior proceeding
I.I.C., Tentulikhunti P.S. filed report dated 30.07.2025 stating the appellant is surviving but in terrible health, undergoing treatment of paralysis and bed-ridden for the last five to six years; photographs enclosed.¶43
Prior proceeding
Learned counsel for the appellant, regard being had to the period of custody undergone and the appellant's health condition, submitted he would not press the appeal on conviction and confined his argument to the quantum of sentence.¶46
Prior proceeding
Learned counsel further submitted that the records reveal the appellant has already undergone the entire sentence awarded to him, so nothing needed to be heard even on sentence.¶46-47

Dambarudhar Sarabu v. State

Case brief

What is this about?

What did the court decide?

Dambarudhar Sarabu v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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Procedural history

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Coram

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