Hemnata@Nabin Meher Vs State of Odisha

1. Instant revision is filed by the petitioners assailing the impugned judgment dated 27^th March, 2025 passed in connection with Criminal Appeal No.10 of 2024 by the learned Additional Sessions Judge, Kantabanji confirming the order of conviction and sentence dated 23^rd November, 2024 of the learned Assistant Sessions Judge, Kantabanji in S.C. Case No.83/37 of 2013 on the grounds inter alia that the same are liable to be interfered with and set aside.

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2. The petitioners faced trial in S.C. Case No.83/37 of 2013 for the offences under Sections 452,341,354 and 506 read with 34 IPC combinedly and in addition, petitioner No.1 under Sections 366 and 376 IPC. The prosecution case in brief is that the alleged occurrence took place on 1^st June,

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2012, during and in course of which, the petitioners entered inside the house of the informant and one of them, namely, petitioner No.1 threatened the victim with a knife and thereafter, the other events followed. It has also been alleged against petitioner No.1 that he threatened the informant and others, if she did not marry him. In course of investigation, the previous incident, which had happened with the informant, was revealed and according to the prosecution, it took place on 27^th April, 2012 at about 5 P.M., when petitioner No.1 asked the informant over phone to marry him and on her denial, she was threatened and thereafter, under threat and compulsion, accompanied him to Puri. It is further alleged that during such time, while staying together, petitioner No.1 committed other mischief by having physical relationship with the informant and also threatened her to upload the naked photographs of their intimate moments in social media and finally, on 29^th April, 2012, she returned to home. After the above incidents having taken place with the involvement of petitioner No.1, the subsequent event took place on 1^st June, 2012, whereafter, the report was lodged at the PS. Upon registration of Bangomunda P.S. Case No.45 dated 1^st June, 2012 for the alleged offences, the investigation was conducted and ultimately, the chargesheet was filed against the petitioners to stand their trial in the Court of law. After commitment of the case, the petitioners when pleaded not guilty, the trial began and ultimately, it led to the passing of the impugned order of conviction and sentence. At the end of the trial, the petitioners were found not guilty for the

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offence under Section 354 read with Section 34 IPC and at the same time, petitioner No.1 for the offences under Sections 366 and 376 read with Section 34 IPC. However, both were convicted under Sections 452,341,352 and 506 read with 34 IPC and sentenced to undergo S.I. for one year each for the offence under Section 354 read with Section 34 IPC and to pay a fine of Rs.1000/- each with default sentence; S.I. for one month each for the offences under Sections 341 and 352 read with 34 IPC; and S.I. for six months each for the offence punishable under Section 506(part-1) read with Section 34 IPC with all such sentences to run concurrently with their period of detention being set off.

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3. With the petitioners convicted for the alleged offences, the decision of the learned Assistant Sessions Judge, Kantabanji in S.C. Case No.83/37 of 2013 was challenged in appeal, which has been allowed partly with the sentences reduced to the period already undergone. The judgment of the learned Additional Sessions Judge, Kantabanji at Annexure-2 in Criminal Appeal No.10 of 2024 has been challenged by the petitioners on the ground that the same is not tenable in law.

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4. The grounds of challenge against the order of conviction and sentence modified by the learned Court below are as to the following:

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(i) the judgment of learned Courts below with the order of conviction and sentences are against the weight of evidence on record;

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(ii) discrepancy in the evidence of the victim, namely, P.W.9 revealed during her crossexamination that she lodged the FIR at around 11 to 12 ‘O’ clock but the report was lodged at 6.00 P.M. and that apart, no neighbours have been examined by the prosecution, whom she claimed to have witnessed the alleged incident;

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(iii) no charge under Section 352 IPC was framed, hence, the order of conviction for the said offence is legally untenable;

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(iv) the delay in lodging of the FIR has not been properly explained by the prosecution;

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(v) the victim and petitioner No.1 were in a consensual relationship, hence, the allegation is outrightly false;

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(vi) the alleged occurrence took place more than 12 to 13 years back from the date of order of conviction and the petitioners stood acquitted for other offences, hence, such order of conviction is not sustainable in law;

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(vii) several contradictions in the evidence of the prosecution witnesses, whereas, the learned Courts below heavily relied on the evidence of the interested witnesses;

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(viii) the essential ingredients of the offences alleged against the petitioners have not been proved and established and that apart, there is no independent corroboration with regard to the forced entry or attempt to abduct the victim, thereby, making the entire story of the prosecution doubtful and untrustworthy; and

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(ix) the case is an outcome of personal animosity between the parties, hence, the petitioners have been falsely implicated with an ulterior motive with highly exaggerated and false allegations.

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With the above grounds pleaded, the petitioners demand an order of acquittal.

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5. Heard Mr. Nanda, learned counsel for the petitioners and Mr. Swain, learned AGA for the State.

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6. Recorded the submissions of learned counsel for the respective parties.

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7. For the alleged offences, in respect of which, the petitioners were convicted after trial, the sentences, however, stood modified by the impugned judgment at Annexure-2 in Criminal Appeal No.10 of 2024. For the offence of rape, petitioner No.1 was acquitted and it has been the view of the learned Courts below that the allegations were not established as the relationship between him and the victim proved to be a consensual one and the other mischief committed on 1^st June, 2012 by the petitioners has been established leading to the

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order of conviction and sentence. The learned Court below, after a hearing on the question of sentence, directed the petitioners to undergo sentences with a maximum imprisonment of one year S.I. for the offence under Section 452 read with 34 IPC besides fine. The learned Assistant Sessions Judge, Kantabanji formulated the points for determination regarding the trespass by the petitioners into the house of the victim informant and committing other mischief for wrongful restraining her and other family members and using criminal force with an intention to abduct and to compel her to marry petitioner No.1.

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8 . The allegations for the offences under Sections 366 and 376 IPC could not be substantiated by the prosecution. The order of acquittal for the said offences has not been challenged by the State or the victim, as informed to the Court. The conviction and sentences directed against the petitioners for the other offences were challenged in appeal but with confirmation of the conviction, the sentences stood modified.

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9 . During trial, the prosecution examined the victim as P.W.9 and fourteen other witnesses including the I.O. The mother of the informant was examined as P.W.2 and according to her, the petitioners committed the mischief during the alleged incident involving P.W.9. The victim, namely, P.W.9. herself, deposed during trial supporting the prosecution case regarding the incident dated 1^st June, 2012 and the earlier events with the involvement of petitioner No.1. The other

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witnesses including the I.O. examined as P.W.15 deposed before the learned Trial Court with respect to the incidents dated 28^th April, 2012 and 1^st June, 2012.

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10 . According to Mr. Nanda, learned counsel for the petitioners, firstly, there has been delay in lodging of the FIR and it has not been duly explained. From the record, it reveals that the report was lodged at 6.00 PM, but according to the informant, namely, P.W.9, she had lodged it between 11 to 12 ‘O’ clock. The contention of Mr. Nanda, learned counsel is that such discrepancy in the evidence of P.W.9 is fatal to the case of the prosecution. Mr. Swain, learned AGA for the State, on the other hand, submits that the evidence of P.W.9 is to be appreciated considering the fact that she is the victim and that apart, any such evidence is not a contradiction but a discrepancy, which is to be ignored. The time of lodging of FIR mentioned therein as against the evidence of P.W.9, even if found to be not consistent, according to the Court, too much of importance should not be given to it. Such difference as to the time conceived by one in lodging of the report does normally happen in such situations. It could be that P.W.9 had been to the PS to report the incident and was there in the afternoon, hence, she could be of the impression about the FIR being lodged during that time. Such discrepancy is not a serious ground to be taken judicial notice of and rightly, therefore, both the learned Courts below did not attach any such importance to the evidence of P.W.9 with reference to the F.I.R.

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11 . As regards, the evidence of the interested witnesses, the contention of Mr. Nanda, learned counsel for the petitioners is that the prosecution case is not to be easily trusted but the same is challenged by the State on the ground that there is material on record to make one believe about the alleged incident dated 1^st June, 2012. Law is well settled that the evidence of the interested witnesses is not to be rejected outrightly even in absence of independent corroboration, if the same is found to be otherwise acceptable and trustworthy. At times and normally, it has been experienced that the neighbours or outsiders, who are uninterested, despite having witnessed the incident taking place do not come forward or even if examined, turn hostile not supporting the prosecution during trial. But, under such circumstances, a Court is to consider and independently examine the evidence of the victim and other witnesses and to arrive at a conclusion, whether, the same should be accepted. But, merely for the reason that the interested witnesses have not been examined, hence, there is no corroboration, in the humble view of the Court, on such ground, the prosecution story is not to be discarded as it could lead to miscarriage of justice.

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12 . In the case at hand, according to the petitioners, no neighbours have been examined from the side of the prosecution, even when, P.W.9 claimed them to have witnessed the incident dated 1^st June, 2012. Non-examination of any such neighbours of P.W.9 should not be a ground to reject the prosecution case. It cannot be said that the genesis of the incident has been suppressed without the real version

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being presented after having considered the entire evidence. So, the conclusion of the Court is that on any such ground, the testimony of P.W.9 is not to be disbelieved.

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13 . The delay in lodging the FIR is claimed not to have been properly explained by the prosecution. In a case of present nature, at times, delay happens especially when the honour and reputation of a family is at stake as herein the informant victim was subjected to harassment in the hands of petitioner No.1 at the relevant point of time as she was coerced and intimidated to marry him. In such a situation, it is quite but natural to report the incident with some amount of delay and therefore, in the case at hand, lodging of the FIR with any such delay is well understood and it needs no explanation from the prosecution.

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14 . The other ground is that P.W.9 has had a consensual relationship with petitioner No.1 for having accompanied the latter to Puri, where both of them stayed in a hotel and when it has been accepted by the learned Courts below, both the petitioners could not have convicted for other offences as the allegation of rape was found to be false. The Court is unable to accept such an argument of Mr. Nanda, learned counsel for the petitioners for the reason that even though the earlier incident alleging kidnapping and rape was not believed, the occurrence dated 1^st June, 2012 was fully established. A part of the prosecution case, if proved, which relates to an incident and that can be segregated from the rest, it can be believed and be the basis of conviction. The incident dated

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28^th April, 2012 may not have been proved as for an offence under Section 376 IPC was not made out nor a case of kidnapping on the premise that the parties had been in a relationship by then, hence, to be consensual but that by itself, does not make the incident dated 1^st June, 2012 suspect.

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15 . The Court below has applied the principle of ‘ falsus in uno, falsus in omnibus ’ by concluding that a part of the testimony of a witness should not be discarded simply because the remainder was found to be false. Even, if the evidence of P.W.9 was not believed for the alleged offences of rape and kidnapping, which is in relation to another incident that had taken place on 28^th April, 2012, for that, the occurrence dated 1^st June, 2012 should not be doubted. Both are separate incidents and if one is disbelieved, the other one is not to be rejected automatically. So, the testimony of P.W.9 is not to be distrusted for the incident dated 1^st June, 2012, as it has been fully corroborated by P.W.2 and others. According to the Court, the entire evidence is to be examined either with or without corroboration. A Court should be considering the truthfulness or otherwise of the allegations made and sought to be proved by the prosecution. Absence of independent corroboration is not always fatal and a ground to reject the case of the prosecution in its entirety. When there is evidence for the incident dated 1^st June, 2012 and it is proved with the evidence of P.W.9 and other material witnesses, who are related to her and in whose presence, the same had taken place with the involvement of the petitioners, the Court has

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no reason to disbelieve and to conclude that the learned Courts below rightly rejected such defence.

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16 . As far as offence under Section 352 IPC is concerned, according to Mr. Nanda, learned counsel for the petitioners, the learned Trial Court never framed charge for it, hence, the order of conviction for the said offence is not sustainable in law. The offence alleged against the petitioners punishable under Section 352 IPC relates to use of criminal force or assault otherwise than on provocation. Admittedly, there has been no charge for the offence under Section 352 IPC. But, according to the Court, the contention of Mr. Nanda, learned counsel is misconceived while claiming that conviction order under Section 352 IPC is not legally sustainable without a charge being framed. According to the Court, even in absence of charge in place, there can be conviction for a particular offence, when no prejudice has occasioned to the defence with the evidence on record. If an accused is well aware of the nature of allegation made and the evidence was adduced, as in the case herein, absence of a charge framed for an offence under Section 352 IPC is inconsequential. It is not that the defence was put to surprise with the conviction under Section 352 IPC, as it was fully conscious of the evidence of the prosecution to the effect that the petitioners forcibly made their entry into the house of the informant and used the criminal force, while committing other mischief. Absence of a charge framed or any such additional charge brought on to record during trial, a Court could consider convicting an accused for a particular offence, when there has been

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evidence received from both the sides and it was well within the knowledge of the defence. In the case of the petitioners, it is not that both of them were not aware of the allegation regarding use of criminal force in the FIR and also during trial, with evidence being adduced by the prosecution and therefore, to claim that the conviction for an offence under Section 352 IPC cannot be sustained is unacceptable and rightly, therefore, in the considered view of the Court, there has been conviction under Section 352 IPC even in absence of charge framed by the learned Trial Court. That apart, the petitioners faced trial for a charge under Section 354 IPC allegedly for having outraged modesty of the informant but considering the evidence on record, the learned Trial Court was satisfied that an offence of use of criminal force simplicitor was proved and established, hence, convicted them thereunder, which, in the humble view of the Court, is perfectly justified and permissible under law.

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17 . When the alleged incident dated 1^st June, 2012 is established with all such evidence received from the prosecution and as the testimony of P.W.9, who is the victim, is supported by others, taking into account, the entire evidence including P.W.14, namely, I.O., the inescapable conclusion of the Court is that there is no any error or illegality committed by the learned Courts below while passing the order of conviction and finally, in appeal, directing the sentences reduced for the period already undergone, while disposing of the appeal, having regard to the fact that the petitioners remained in judicial custody for

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some time as UTPs and perhaps for the reason that the alleged incident was more than a decade old by then. In other words, the learned Court below considering the entirety of the evidence, nature of offences alleged and the kind of mischief committed by the petitioners, rightly, upheld the order of conviction and modified the sentences. Having said that, the final conclusion of the Court is that the impugned judgment as at Annexure-2 does not suffer from any legal infirmity and thus, calls for no interference and accordingly, it is ordered.

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18 . In the result, the revision petition stands dismissed. As a necessary corollary, impugned judgment dated 27^th March, 2025 passed in connection with Criminal Appeal No.10 of 2024 by the learned Additional Sessions Judge, Kantabanji is hereby affirmed for the reasons discussed hereinbefore.

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(R.K. Pattanaik) Judge

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Alok

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Signature Not Verified

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Digitally Signed Signed by: ALOK RANJAN SETHY Reason: Authentication Location: ORISSA HIGH COURT Date: 14-Nov-2025 16:47:21

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Hemnata@Nabin Meher v. State of Odisha

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Hemnata@Nabin Meher v. State of Odisha

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