Sankar Behera Vs State of Odisha

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Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKARReason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2026 18:10:32

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CRLA No. 117 of 2024

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(In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure, 1973).

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Sankar Behera …. Appellant (s) -versus…. State of Odisha Respondent (s)

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Advocates appeared in this case through Hybrid Arrangement Mode :

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For Appellant (s) : Mr. Kshirod Kumar Rout, Advocate Mr. T.S. Swaraj, Advocate For Respondent(s) : Mr. Sonak Mishra, ASC

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CORAM: DR. JUSTICE SANJEEB K PANIGRAHI

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DATE OF HEARING: -30.03.2026 DATE OF JUDGMENT: -17.04.2026

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Dr. Sanjeeb K Panigrahi, J.

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1. The appellant is challenging the legality of the judgment dated 10.01.2024 passed by the learned Adhoc Additional District and Sessions Judge (FTSC) under the POCSO Act, Berhampur, in T.R. Case No. 58 of 2021 (FTSC), arising out of Ganjam P.S. Case No. 29 of 2015 corresponding to G.R. Case No. 66 of 2015, whereby the appellant was convicted for the offence punishable under Section 376(2)(n) of the IPC and sentenced to undergo rigorous imprisonment for a period of

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Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKARReason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2026 18:10:32

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ten years and to pay a fine of Rs. 30,000/-, in default to undergo rigorous imprisonment for three months.

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I. FACTUAL MATRIX:

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2. The prosecution case, in brief, is that on 07.06.2015 at about 2:00 P.M., the informant lodged an FIR at Ganjam Police Station alleging, inter alia, that her daughter (the victim) had been studying in Malada High School about two and a half years prior to the lodging of the FIR. During that period, one day in the afternoon, while the victim was returning home from school near Kharakhai Hill, the accused forcibly dragged her to a nearby cashew grove, threatened her by showing a knife, undressed her, and committed rape upon her without her consent. It is further alleged that the accused took nude photographs of the victim and threatened to make them viral if she disclosed the incident, which would adversely affect her marriage prospects as well as those of her sister, and thereafter fled from the spot. Frightened by social stigma, the victim remained silent about the incident. Taking advantage of her silence and continuing to threaten to make the photographs viral, the accused is alleged to have repeatedly committed rape upon her on several occasions.

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3. It is further alleged in the FIR that on 26.03.2015 at about 4:00 P.M., while the victim was returning home from a tailoring shop, the accused, who had concealed himself near the hill, suddenly appeared and forcibly took her to a nearby cashew grove, where he undressed her and committed rape upon her. On her raising alarm, nearby

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Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKARReason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2026 18:10:32

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persons rushed to the spot, apprehended the accused along with the victim, and brought them to the village.

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4. A village meeting was thereafter convened. When the parents of the victim requested the village elders to report the matter to the police, the accused and his parents agreed to a proposal of marriage between the accused and the victim. However, about one month later, the accused declined to marry the victim unless his demand of Rs.1,50,000/- was fulfilled.

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5. It is further alleged that, in the meantime, the accused humiliated the informant and her family members by showing the nude photographs of the victim to others and also threatened that if any action was taken against him, he would kidnap and rape the victim’s younger sister. On being approached, the village elders expressed their inability to intervene in the matter. Finding no other alternative, the informant approached the police station and lodged the written report.

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6. On the basis of the said written report, Ganjam Police Station registered P.S. Case No. 29 of 2015 for the offences punishable under Section 376(2)(n) of the IPC read with Section 6 of the POCSO Act and took up investigation. Upon completion of investigation, charge-sheet was submitted on 03.10.2015 for the aforesaid offences.

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7. Thereafter, charges were framed under Section 376(2)(n) of the IPC read with Section 6 of the POCSO Act, and the appellant was put on trial. In order to prove its case, the prosecution examined as many as sixteen witnesses. The defence examined one witness.

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Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKARReason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2026 18:10:32

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8. P.W.1 is the mother of the victim, P.W.3 is the elder sister, and P.W.5 is the uncle of the victim; all of whom supported the version of the victim (P.W.2). P.Ws.4, 6, 9 and 10 are independent witnesses who deposed regarding the village meeting convened following disclosure of the incident. P.W.8 and P.W.11 are the doctors who examined the victim and the accused respectively. P.W.7 is the seizure witness. P.W.12 is the Headmaster who proved the school admission register of the victim. P.Ws.13, 14 and 15 are the Investigating Officers. P.W.16 is the Lady Sub-Inspector who recorded the statement of the victim under Section 161 Cr.P.C. The accused examined one Bijay Behera as D.W.1 in support of his defence.

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9. Upon appreciation of the evidence on record, the learned trial court, despite absence of medical evidence indicating recent sexual assault, placed reliance on the testimony of the victim and held the same to be reliable and trustworthy, and accordingly convicted the appellant under Section 376(2)(n) of the IPC. However, the appellant was acquitted of the charge under Section 6 of the POCSO Act, as the victim was held to be major at the relevant time.

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10. Being aggrieved thereby, the appellant has preferred the present appeal.

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II. SUBMISSIONS OF THE APPELLANT:

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11. Learned counsel for the appellant made the following submissions in support of his contentions:

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Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKARReason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2026 18:10:32

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i. The impugned judgment of conviction and order of sentence is illegal, being contrary to the evidence and materials available on record, and is liable to be set aside.

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ii. The learned court below has failed to properly appreciate the evidence on record and, on an erroneous appreciation of facts and law, has passed the impugned judgment without due application of judicial mind.

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iii. The learned court below has failed to appreciate the settled principle of law that, though a conviction can be based on the sole testimony of the prosecutrix in a case of rape, such testimony must be of sterling quality and inspire confidence, and cannot be treated as sacrosanct without careful scrutiny.

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iv. It is further contended that, when the learned trial court disbelieved the prosecution case regarding the victim being a minor and consequently acquitted the appellant of the charge under Section 6 of the POCSO Act, it was unjustified to convict the appellant under Section 376(2)(n) of the IPC without properly appreciating the aspect of consent.

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v. It is further contended that, upon proper appreciation of the evidence on record, the learned trial court ought to have held that the relationship between the parties was consensual, and therefore the appellant is not guilty of the offence under Section 376(2)(n) of the IPC.

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Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKARReason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2026 18:10:32

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vi. It is further contended that, when the medical evidence does not support the allegation of rape, it is unjustified to sustain the conviction under Section 376(2)(n) of the IPC.

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vii. The learned trial court failed to properly consider the proceedings of the village meeting, which indicate that the FIR came to be lodged only after the proposal of marriage between the victim and the appellant did not materialise, and that the same is an afterthought to falsely implicate the appellant.

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viii. It is submitted that the learned trial court failed to consider the evidence of D.W.1, who supports the defence case, and for such nonconsideration of material evidence, the impugned judgment is liable to be set aside.

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ix. It is submitted that the prosecution has failed to prove its case beyond reasonable doubt, and therefore the appellant ought not to have been convicted under Section 376(2)(n) of the IPC.

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x. It is submitted that the testimony of the victim (P.W.2) suffers from material improvements and contradictions when compared with her statement recorded under Section 164 Cr.P.C., particularly with regard to material aspects of the occurrence.

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xi. It is further submitted that the prosecution case is improbable, inasmuch as the victim did not disclose the alleged repeated incidents to any of her family members for a prolonged period of about two and a half years.

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Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKARReason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2026 18:10:32

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xii. It is also submitted that, with regard to the alleged incident dated 25.03.2015, the victim was missing for about two days, yet no report was lodged with the police during that period.

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xiii. It is contended that no independent witness has been examined to support the allegation that the victim was taken to different places and kept for a considerable period.

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xiv. It is further submitted that Exhibits 4 and 13 do not contain any allegation of sexual assault and only relate to the proposed marriage between the parties.

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xv. The impugned judgment is otherwise bad in law and is liable to be set aside.

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III. SUBMISSIONS OF THE RESPONDENT:

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12. Per contra, learned counsel for the respondent made the following submissions in support of his contentions:

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i. It was submitted that the learned trial court, after assessing the evidence adduced by the prosecution, rightly found the accused/appellant guilty of the offence and convicted him under Section 376(2)(n) of the IPC and sentenced him accordingly.

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ii. The prosecution, in order to substantiate its case, examined as many as sixteen witnesses, including the victim (P.W.2), whose testimony is cogent, consistent, and inspires confidence.

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iii. The victim has clearly narrated the incident of sexual assault, stating that the appellant initially committed rape upon her under threat and thereafter continued to subject her to repeated sexual exploitation by

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Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKARReason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2026 18:10:32

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intimidation and coercion. Her version finds due corroboration from the evidence of her mother (P.W.1), sister (P.W.3), and other witnesses, who have deposed regarding the disclosure made by the victim and the subsequent events.

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iv. It is further submitted that village meetings were convened wherein the appellant admitted his wrongdoing and assured to marry the victim, but later did not act on such assurance, compelling the informant to lodge the FIR. It is further contended that the medical evidence and the school records establish that the victim was a minor at the relevant time, thereby attracting the rigours of the POCSO Act.

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v. It is also contended that the investigation has been conducted in due compliance with law, including recording of the victim’s statement under Section 164 Cr.P.C., medical examination, and collection of evidence.

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IV. FINDINGS OF THE LEARNED ADHOC ADDITIONAL DISTRICT AND SESSIONS JUDGE (FTSC) UNDER THE POCSO ACT, BERHAMPUR:

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13. The learned trial court, upon analysis of the prosecution evidence, placed primary reliance on the testimony of the victim (P.W.2) and found the same to be clear, cogent, and consistent with regard to the allegation that the accused had committed sexual intercourse with her repeatedly against her will. The court noted that the victim had categorically deposed about the initial incident of forcible sexual assault under threat as well as subsequent acts of sexual intercourse committed by the accused at different times. It further observed that

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Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKARReason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2026 18:10:32

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her testimony in court was consistent with her earlier statements made before the police and the Magistrate.

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14. The learned trial court also took into consideration the evidence of P.W.1 (mother of the victim), P.W.3 (sister), and other witnesses, who supported the version of the victim regarding her disclosure and the convening of village meetings, wherein the accused had agreed to marry the victim but subsequently did not adhere to such assurance. The court further noticed that the defence plea was one of complete denial.

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15. On the aspect of medical evidence, the learned trial court observed that although no injury was found on the person of the victim, the same would not negate the allegation of rape, particularly in view of the fact that the victim was subjected to repeated sexual intercourse over a period of time. It was held that absence of injury is not decisive and that conviction can be based on the sole testimony of the prosecutrix if it inspires confidence.

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16. With regard to the age of the victim, the learned trial court considered both the school admission register, which indicated the date of birth of the victim as 19.05.1998, and the medical opinion assessing her age between 17 to 19 years. Referring to the possibility of variation in age determination and extending the benefit of doubt to the accused, the court held that the victim was major at the time of occurrence and accordingly acquitted the accused of the charge under Section 6 of the POCSO Act.

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Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKARReason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2026 18:10:32

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17. However, the learned trial court came to the conclusion that the prosecution had been able to prove beyond reasonable doubt that the accused had committed rape on the victim repeatedly without her consent. Placing reliance on the settled position of law that corroboration of the testimony of the prosecutrix is not a rule of law if her evidence is found to be reliable, the court held the accused guilty of the offence punishable under Section 376(2)(n) of the IPC and convicted him thereunder.

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18. Upon hearing on the question of sentence, and having regard to the nature and gravity of the offence and its impact on society, the learned trial court sentenced the accused to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.30,000/-, and in default of payment of fine, to undergo rigorous imprisonment for a further period of three months.

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V. COURT’S REASONING AND ANALYSIS:

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19. Heard learned counsel for the parties and perused the material placed on record.

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20. The present appeal arises from a conviction recorded under Section 376(2)(n) of the Indian Penal Code, 1860, which penalises a person who commits rape repeatedly on the same woman.

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21. The question that arises for consideration is whether the learned trial court was justified in convicting the appellant on the basis of the evidence on record and whether such finding warrants interference in appeal.

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Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKARReason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2026 18:10:32

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22. It is well settled that in a case of rape, conviction can be based on the sole testimony of the prosecutrix if such testimony inspires confidence and is of sterling quality. The Supreme Court in State of Punjab v. Gurmit Singh¹ observed as follows:

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“21… The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.”

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23. Similarly, in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat² , the Supreme Court observed that the evidence of a prosecutrix should not be approached with suspicion or disbelief. The Court emphasised that, having regard to the conditions in Indian society, it would be extremely unlikely for a woman to falsely level an allegation of rape, since such an accusation exposes her to serious consequences, including stigma and social repercussions.

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1 1996 SCC (2) 384.

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2 (1983) 3 SCC 217.

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Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKARReason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2026 18:10:32

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24. At the same time, such testimony must be scrutinised carefully and if it suffers from material contradictions or inherent improbabilities, the Court is not bound to act upon it.

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25. On the concept of ‘sterling witness’ the Supreme Court in Rai Sandeep v. State (NCT of Delhi)³ , observed that such a witness should be of very high quality and calibre whose version is unassailable. The testimony must be consistent from the inception till its deposition in court, natural, and free from material contradictions or prevarication. The witness must withstand cross-examination and not give rise to any doubt as to the occurrence, the persons involved, or the sequence of events. The version should be in harmony with the other evidence on record, and only when it satisfies these tests can it be accepted without corroboration.

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26. In the present case, the acquittal of the appellant under the POCSO Act does not, by itself, affect the conviction under Section 376(2)(n) IPC. The said acquittal was based on benefit of doubt regarding the age of the victim. The offence under Section 376(2)(n) IPC stands on an independent footing and requires proof of repeated sexual assault without consent.

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27. P.W.2, the prosecutrix, has deposed in clear terms that about two and a half years prior to the lodging of the FIR, while returning from school near Kharakhai Hill, the appellant forcibly dragged her into a cashew grove, threatened her with a knife, undressed her, and

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3 (2012) 8 SCC 21.

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Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKARReason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2026 18:10:32

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committed rape upon her. She has further stated that the appellant took nude photographs of her and threatened to make them public if she disclosed the incident, thereby creating fear regarding her own reputation as well as that of her family. She has further stated that under such threat, the appellant continued to subject her to repeated sexual intercourse on several occasions. She has also spoken about the incident dated 26.03.2015, when she was again forcibly taken to a cashew grove and subjected to sexual assault, and upon her raising alarm, persons from the vicinity came and apprehended both of them.

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28. On careful consideration of her cross-examination, no material contradiction has been elicited which goes to the root of the prosecution case. The discrepancies pointed out relate only to peripheral aspects such as timing and sequence of disclosure. Such minor inconsistencies are natural and do not affect the core of the prosecution case.

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29. The contention that her testimony suffers from material improvements when compared with her statement under Section 164 Cr.P.C. does not merit acceptance. A comparison of the two statements shows that the essential narrative of forcible sexual assault under threat and the taking of nude photographs remains consistent. The variations pointed out are in the nature of elaboration and do not affect the substance of the prosecution case.

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30. The testimony of the prosecutrix is corroborated by the evidence of P.W.1 and P.W.3, who have deposed regarding the disclosure made

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Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKARReason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2026 18:10:32

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by her. Independent witnesses P.Ws.4, 6, 9 and 10 have also deposed regarding the village meeting where the appellant agreed to marry the victim. Such conduct constitutes an incriminating circumstance.

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31. The absence of specific reference to sexual assault in the village meeting documents does not undermine the prosecution case. The fact that a proposal of marriage was made lends support to the allegation of wrongdoing and cannot be viewed in isolation.

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32. The delay in lodging the FIR stands satisfactorily explained. The prosecutrix has stated that she remained silent due to the threat of circulation of her nude photographs. In cases of this nature, delay, when properly explained, does not render the prosecution case doubtful.

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33. The contention regarding non-reporting during the alleged two-day disappearance also does not create doubt. The surrounding circumstances indicate continued intimidation and fear, which explains the conduct of the victim and her family.

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34. The medical evidence does not discredit the prosecution case. The absence of injuries is not decisive, particularly when the allegation is of repeated sexual intercourse over a period of time. It is well settled that medical evidence is corroborative in nature and conviction can be based on the testimony of the prosecutrix alone if found reliable.

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35. The plea of consent is without merit, inasmuch as consent in law must be voluntary and free, and submission under threat, particularly the threat of making intimate photographs public, cannot be construed as

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Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKARReason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2026 18:10:32

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consent. The evidence clearly establishes that the will of the prosecutrix was overborne by fear and coercion.

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36. The defence evidence does not inspire confidence, as the testimony of D.W.1 merely indicates acquaintance between the parties and falls short of establishing a consensual relationship, particularly in view of the surrounding circumstances, including the conduct of the appellant and the proceedings of the village meeting, which are inconsistent with such a defence.

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37. The learned trial court has independently assessed the evidence on the aspect of consent and has rightly concluded that the prosecution has proved the offence under Section 376(2)(n) of the IPC beyond reasonable doubt.

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38. Upon a cumulative assessment of the evidence on record, this Court finds no perversity in the findings recorded by the learned trial court and no ground for interference with the conviction, and the sentence imposed, being the minimum prescribed under law, does not warrant any interference.

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VI. CONCLUSION:

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39. In view of the foregoing discussion, this Court finds no infirmity or perversity in the judgment of conviction passed by the learned trial court. The prosecution has been able to establish, beyond reasonable doubt, that the appellant committed the offence under Section 376(2)(n) of the IPC. The findings recorded by the learned trial court are well-reasoned and based on proper appreciation of evidence, and

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Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKARReason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2026 18:10:32

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no ground for interference is made out in appeal. The sentence imposed, being the minimum prescribed under law, is also found to be just and appropriate.

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40. Accordingly, the appeal stands dismissed and the judgment of conviction and order of sentence are affirmed.

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41. The Interim order, if any, passed earlier stands vacated.

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(Dr. Sanjeeb K Panigrahi) Judge

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Orissa High Court, Cuttack, Dated the 17^th April, 2026/

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Sankar Behera v. State of Odisha

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Sankar Behera v. State of Odisha

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