KANTA BAG@KEUT vs STATE OF ODISHA

THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.372 of 2019
CNR No.ODHC010293532019
(In the matter of an application under Section 374 (2) of Criminal
Procedure Code )

Kanta Bag @ Keut ……. Appellant

-Versus-
State of Odisha ……. Respondent

For the Appellant : Mr. G.N. Sahu, Advocate

For the Respondent : Mr. Jateswar Nayak, AGA

CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 28.09.2026 : Date of Judgment: 31.10.2026

S.S. Mishra, J. The present appeal has been filed assailing the
judgment of conviction and order of sentence dated 30.03.2019 passed
by the learned Additional District and Sessions Judge-cum-Special
Judge, Nuapada in S.A. No.91 of 2017, whereby the appellant has been

convicted for commission of the offence punishable under Section
376(2)(n) of the Indian Penal Code and sentenced to undergo rigorous
imprisonment for a period of ten years and to pay a fine of Rs.5,000/-, in
default whereof, to undergo further rigorous imprisonment for six
months.
2. Heard Mr. G.N. Sahu, learned counsel appearing for the appellant,
and Mr. Jateswar Nayak, learned Additional Government Advocate
appearing for the respondent-State.
3. The prosecution case, in brief, is that on 31.07.2017, one Smt.
Bimala Bag, a co-villager of the informant-Jhangulu Pandey, came to the
house of the informant and informed his wife that her son, i.e., the
accused, had developed physical relationship with the victim and that, as
a result thereof, the victim had become pregnant by about three to four
months. She further stated that she wanted the foetus to be aborted. The
wife of the informant disclosed these facts to him in the evening upon his
return home. On the following morning, the informant questioned the
victim, who admitted the said facts and stated that the accused had
established physical relationship with her on the false assurance of

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marriage. Thereafter, on 01.08.2017, when the victim went to the house
of the accused, his mother-Bimala Bag and sister-Minati Bag allegedly
assaulted her and drove her away. A meeting was convened at about
10.00 a.m.; however, no settlement could be arrived at. Consequently,
the informant lodged a report before the police, which was registered as
Beltukuri P.S. Case No.76 dated 02.08.2017 for the offences punishable
under Sections 376(2)(n), 493, 417, 323 and 34 of the IPC read with
Section 6 of the POCSO Act. The Investigating Officer took up
investigation, examined the victim and other witnesses, sent the victim
and the accused for medical examination, seized the relevant documents,
arrested the accused and forwarded him to the Court. Upon completion
of investigation, charge-sheet was submitted against the accused for the
offences punishable under Sections 376(2)(n) and 417 of the IPC along
with Section 6 of the POCSO Act.
4. In order to establish its case, the prosecution examined twenty-five
witnesses, namely, P.Ws.1-Jagat Ram Chandrakar, 2-Ratikanta Pradhan,
3-Bisahu Pandey, 4-Chandra Sekhar Pradhan, 11-Shraban Kumar
Chandrakar, 12-Kishor Chandra Barik and 21-Omprakash Chandrakar as

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independent witnesses; P.Ws.5-Haradhar Pradhan, 6-Bidesh Pradhan and
7-Ramesh Barik as seizure witnesses; P.W.8-Sundarlal Pandey, brother
of the informant; P.W.9-Pramila Nial and P.W.10-Netram Majhi as
police constables/official seizure witnesses; P.W.13-Kulanti Bai Pandey,
mother of the victim; P.W.14, the victim; P.W.15-Jhangulu Pandey, the
informant; P.W.16-Dewanlal Pandey, brother-in-law of the victim;
P.W.17-Dr. Bikram Keshari Naik, who examined the victim; P.W.18-Dr.
Bijaya Ranjan Panigrahi, O&G Specialist, D.H.H., Nuapada, who
conducted the ultrasound examination of the victim; P.W.19-Dr. Pitbash
Sha, Paediatric Specialist, C.H.C., Khariar Road, who examined the
accused; P.W.20-Susila Pradhan, Anganwadi Worker; P.W.22-Bimala
Pandey, sister of the victim; P.W.23-Sudhir Kumar Sahoo, the
Investigating Officer; P.W.24-Chandra Harijan, the scribe of the FIR;
and P.W.25-Nityananda Das, A.S.I. of Police, who assisted the
Investigating Officer during investigation. The prosecution also proved
documents marked as Exts.1 to 17 and material objects marked as
M.Os.I to III. On the other hand, the defence examined two witnesses,
namely, D.W.1 and D.W.2.

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5. Upon appreciation of the evidence on record, the learned Trial
Court, while acquitting the appellant of the charge under Section 417 of
the IPC and under section 6 of the POCSO Act, extending to him the
benefit of doubt with regard to the age of the victim, nevertheless found
the evidence of the victim reliable and held that the prosecution had
succeeded in establishing the charge under Section 376(2)(n) of the IPC.
The relevant findings of the learned Trial Court, as contained in
paragraphs 9 and 11 of the judgment, are extracted below:
“9. On the other hand learned counsel for the prosecution
advanced his argument and further submitted that the court
shall presume that the accused has committed the offence
unless the contrary is proved as mandate u/s 29 of the
POCSO Act. In this case at hand, the accused has been
charged for commission of offence u/s 417/376 (2)(n) of the
IPC and U/s 6 of POCSO Act. Now it is to be seen whether
the victim was minor at the relevant time so as to attract
the provision of the POCSO Act. On perusal of Ext.11 and
more particularly, the entry in it vide Ext.11/1 made
relating to the victim, it is found that the date of birth has
been over-written without having any initial and that apart
the register has not been verified nor sealed. P.W.20, from
whom the register has been seized, has not claimed to have
filled up the columns herself in the register. The parent of
the victim are the best persons to say about her date of
birth. According to the mother of the victim (P.W.13), she
cannot say the date, day, month or year of birth of her
daughter. There is no document in this regard with them.
So also the father of the victim (P.W.15), who put his LTI in
the relevant register of the Anganwadi relating to the date
of birth of his victim daughter has deposed that the nurse
has filled up the column and did not ask about the date of

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birth of the victim to him as he was absent during such
entry.
The accused has examined D.W.1 and D.W.2 to
disprove the fact that the victim to be a minor. D.W.1 has
deposed that the victim is 25 days younger to her daughter,
who is by then 22 years old and so also D.W.2 has deposed
the same fact. On going through the evidence on record,
both oral and documentary, I am of the view that the
prosecution has failed to prove that the victim was minor at
the time of alleged incident and thus, I am inclined to
extend the benefit of doubt in favour of the accused in this
regard.
xxxxx xxxxx xxxxx xxxxx
11. In this case at hand the victim has categorically
deposed of being ravished by the accused for six days. She
was put to searching cross-examination, but nothing could
be elicited from her mouth to discredit her sworned
testimony. It is also a well known fact that a girl or a
woman in the tradition bound non-permissive society of
county like ours would be extremely reluctant even to admit
that any incident, which is likely to reflect on her chastity
had ever occurred. I do not find any infirmity in the
evidence of the prosecutrix (P.W.14) to discard her
sworned testimony to the fact that it is the accused who has
ravished her for several times and made her pregnant
resulting in delivery of a baby. So now it is to be seen if the
prosecutrix was a consenting party to the said act. During
her examination the victim has categorically deposed that
she always protested the accused while he developed
physical relationship with her. Consent is an act of reason
coupled with deliberation, after the mind has weighed the
good and evil on each side in a balanced manner. Consent
denotes an active will in the mind of a person to permit the
doing of the act complained of. A mere act of helpless
resignation cannot be deemed to be consent and to me
consent on the part of the victim, as a defence to the
allegation of rape, requires voluntary participation. While
the victim has deposed to have protested the accused for
physical relationship I am of the firm view that she had no
consent to the said act and thus the prosecution has able to
prove the allegation u/s 376(2)(n) of IPC against the
accused. But absolutely there is no iota of evidence against

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the accused for alluring the victim to marry her. Thus, I am
of the view that prosecution has failed to prove the offence
u/s 417 of the IPC beyond all reasonable doubts against the
accused.”
6. Aggrieved by the aforesaid judgment of conviction and order of
sentence, the appellant has preferred the present appeal. Learned counsel
for the appellant, assailing the impugned judgment, would contend that
the learned Trial Court has failed to properly appreciate the evidence
available on record and has arrived at the conclusion of guilt under
Section 376(2)(n) of the IPC without there being sufficient and reliable
evidence to sustain the conviction. He would further contend that the
findings recorded by the learned Trial Court are contrary to the evidence
on record and, therefore, the impugned judgment of conviction and order
of sentence warrants interference by this Court.
7. During pendency of the present appeal, this Court, vide order
dated 09.09.2026, called for a report regarding the conduct and period of
custody of the appellant, along with information as to whether he has any
other criminal antecedents. Pursuant thereto, a report dated 24.09.2026
has been received, indicating that the conduct of the appellant during his
incarceration has been found to be excellent/satisfactory, as reflected in

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the Character Certificate issued by the Superintendent of Jail. It is further
stated that the appellant has already undergone approximately 9 years
and 9 months of the substantive sentence of 10 years. Further, as per the
report dated 21.09.2026 submitted by the I.I.C., Beltuluri P.S., no other
criminal case or violation of any condition is reported to be pending
against the appellant, apart from the present case.
8. Learned counsel for the appellant, Mr. G.N. Sahu, assailing the
impugned judgment of conviction and order of sentence, submitted that
the learned Trial Court has committed serious errors both in appreciation
of the evidence and in its ultimate conclusion regarding absence of
consent. It is contended that the evidence on record, when considered in
its entirety, would indicate that the parties were in an adolescent love
relationship which subsequently developed into a physical relationship
on the assurance of marriage, but the relationship eventually deteriorated
when the marriage did not materialize. According to learned counsel, the
subsequent institution of the criminal case is required to be examined in
the backdrop of such relationship and the surrounding circumstances.

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Learned counsel further submitted that the case of the appellant is
squarely covered by the Judgment of this Court in Bikash Behera v.
State of Orissa , dated 22.05.2026 passed in CRA No.288 of 1997 ,
wherein, on consideration of a similar factual situation involving a
prolonged relationship between the parties, delayed disclosure and
absence of corroborative medical and scientific evidence, this Court held
as follows:
“18. Coming to the second issue, namely whether the
alleged consent was obtained by fraud, coercion, threat or
misconception of fact, the evidence on record does not
inspire confidence to conclusively establish absence of
voluntary participation on the part of the prosecutrix. It’s
noteworthy to mention that at the time of the incident the
appellant was only 20 years of age and the prosecutrix also
of same age group. It appears that they were in an
adolescence relationship. At this point it would be apt to
reproduce the evidence of the prosecutrix (P.W.5) for the
convenience of ready reference:
“2. During the period of occurrence I was working as a
maid servant in the house of the accused. I was engaged
to work in the house of the accused since about 1 year
prior to the occurrence. In course of such employment I
was residing in the accused's house. The occurrence took
place more than a year back in the month of Pausa on a
Wednesday.
3. At the time of occurrences accused Bikash was alone
present in the house and his family members were not
there. The accused dragged me to his T.V. room and
forcibly laid me on the PALANKA, he lifted the Sari
which I was wearing and committed forcible sexual
intercourse with me.
4. After committing rape the accused told me that he
would take me as his wife and threatened me that he
would stab me with knife if I disclose the occurrence to

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any one. Out of fear I did not disclose regarding the
occurrence to my parents or anyone else. Thereafter also
the accused committed rape on me on several occasions
me as a result of which I became pregnant. When I told
regarding the pregnancy to the accused, he gave me some
medicines to terminate the pregnancy. I did not take the
medicine and threw it away.
5. When I was already conceiving for 5 months my
mother could detect the pregnancy. On knowing the same
she enquired regarding the person who is responsible for
the same on which I disclosed regarding the entire
occurrence to her and disclosed the name of the
accused.”
The prosecutrix in the Cross-examination has also states
that she used to have vocal pleasantries of intimate nature,
prior to commission of offence, she in her evidence has
stated thus:
“10. Prior to the occurrence i.e. the first rape in the
month of Pausa, the accused and myself used to exchange
vocal pleasantries of intimate nature. Such pleasantries,
included tilting of eye by me to him and tilting of eye by
him to me…..
XXXX XXXX XXXX
13. The accused showed me knife on every occasion when
he committed rape on me.
14. I used to visit my house at the intervals of 8/10 days.”
Though the prosecutrix alleged that the accused
initially threatened her with a knife and promised to marry
her, it is admitted that the relationship allegedly continued
over several months. She used to visit her parental home at
intervals of 8 to 10 days, yet did not disclose the occurrence
to anyone till pregnancy was detected after nearly five
months, no complaint was lodged either before the police,
village elders or even before her parents immediately after
the alleged occurrence. In cross-examination, she admitted
prior exchange of intimate pleasantries with the accused.
However, admittedly the house of the accused was situated
in the midst of the village and there is no evidence from any
independent villager that any alarm or commotion was ever
heard. No neighbour or co-villager has stated regarding
hearing cries for help from the prosecutrix despite the
alleged repeated incidents occurring over a prolonged

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period. On the other hand, she has admitted in her evidence
that even after the first sexual encounter, they continued the
relationship, which had gone sour of late once the accused
refused to stand by his promise to marry her. This prolonged
silence and continued association between the parties create
a serious dent in the prosecution version of repeated
forcible intercourse against the will of the prosecutrix. The
conduct of the prosecutrix, as emerging from the evidence,
appears inconsistent with the normal conduct expected in a
case of repeated forcible sexual encounter, especially when
opportunities existed for disclosure to her parents during
her visits home. Furthermore, the victim’s parents failed to
establish her exact age or birthdate in their testimony. Their
statements merely repeated the narrative provided by their
daughter, offering no independent corroboration.
19. Furthermore, no contemporaneous medical evidence of
injury or resistance is available on record because of the
delayed FIR. No DNA or genetic examination was
conducted to establish paternity of the child born to the
prosecutrix, thereby depriving the prosecution case of
crucial corroborative scientific evidence.
20. The Hon’ble Supreme Court in Vijayan v. State of
Kerala , reported in (2009) 3 SCC (Cri) 589 , observed that
where the prosecutrix waits for several months before
lodging FIR and continues physical relationship with the
accused, conviction solely on her testimony becomes unsafe,
particularly in absence of supporting medical or scientific
evidence. It was held thus:-
“5. The present case wholly depends upon the testimony
of the prosecutrix. The incident in the present case took
place seven months prior to the date of lodging the
complaint as a realisation dawned upon her that she has
been subjected to rape by the appellant-accused. No
complaint or grievance was made either to the police or
the parents prior thereto. The explanation for delay in
lodging the FIR is that the appellant-accused promised
her to marry therefore the FIR was not filed. In cases
where the sole testimony of the prosecutrix is available, it
is very dangerous to convict the accused, specially when
the prosecutrix could venture to wait for seven months for

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filing the FIR for rape. This leaves the accused totally
defenceless. Had the prosecutrix lodged the complaint
soon after the incident, there would have been some
supporting evidence like the medical report or any other
injury on the body of the prosecutrix so as to show the
sign of rape. If the prosecutrix has willingly submitted
herself to sexual intercourse and waited for seven months
for filing the FIR it will be very hazardous to convict on
such sole oral testimony. Moreover, no DNA test was
conducted to find out whether the child was born out of
the said incident of rape and that the appellant-accused
was responsible for the said child. In the face of lack of
any other evidence, it is unsafe to convict the accused.
Therefore, we are of the opinion that the view taken by
the trial court and the learned Single Judge of the High
Court in convicting the appellant-accused under Section
376 IPC cannot be sustained. Consequently, we set aside
the judgment and order of the trial court as also of the
High Court and quash the conviction and sentence of the
appellant-accused under Section 376 IPC. The accused
may be released forthwith from custody if not required in
any other case.”
Similar view was reiterated in Kaini Rajan v. State of
Kerala , reported in (2013) 3 SCC (Cri) 858 , wherein the
Hon’ble Apex Court held that prolonged silence, delayed
reporting and surrounding circumstances probabilising
consensual intimacy render it hazardous to sustain
conviction for rape. The principles laid down therein were
subsequently noticed and reaffirmed in Prakash Chand v.
State of Himachal Pradesh , reported in (2019) 5 SCC 628 ,
while considering cases involving prolonged physical
relationship and delayed allegations.
xxxx xxxx xxxx xxxx
22. The prolonged silence of the prosecutrix, continued
association between the parties, absence of prompt
complaint, lack of medical evidence showing injuries
suggestive of forcible intercourse, and non-conduct of DNA
examination cumulatively create serious doubt regarding
the prosecution story of repeated forcible rape. The factual
matrix rather probabilises a consensual relationship which
subsequently deteriorated.”

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9. Learned counsel submitted that the aforesaid principles are
applicable to the facts of the present case. According to him, the
statement of the victim recorded under Section 164 of the Code of
Criminal Procedure assumes considerable significance, as therein she
had stated that she and the appellant were in a love relationship and that
the physical relationship developed between them on the assurance of
marriage. It is contended that the said statement is materially at variance
with the subsequent version of the victim before the Trial Court and,
therefore, her deposition as P.W.14 requires careful scrutiny.
10. It is further submitted that there are material discrepancies in the
prosecution case, including with regard to the scribe of the FIR and the
manner in which the initial version came to be recorded. Learned
counsel submitted that the prosecution has also failed to adduce any
reliable scientific evidence connecting the appellant with the child born
to the victim. In particular, no DNA or genetic examination was
conducted to establish the paternity of the child. According to learned
counsel, in the factual circumstances of the case, such scientific evidence

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would have constituted an important piece of corroboration, particularly
when the prosecution case is sought to be founded substantially upon the
testimony of the victim.
11. Learned counsel further submitted that the medical evidence does
not provide any material corroboration of the allegation of repeated
forcible sexual intercourse. It is argued that the alleged occurrence was
spread over a period of time and yet the prosecution has brought on
record no iota of any convincing medical evidence indicative of force or
resistance. The other material contradictions and inconsistencies
appearing in the evidence of the prosecution witnesses, according to
learned counsel, further render the prosecution version doubtful.
12. Learned counsel also submitted that the deposition of the victim
(P.W.14) before the Trial Court, particularly when compared with her
earlier statement under Section 164 of the Cr.P.C., appears to be an
improved version and, therefore, cannot be accepted without
independent and reliable corroboration. It is argued that the learned Trial
Court, while noticing that the prosecution had failed to establish the

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minority of the victim and had consequently extended the benefit of
doubt to the appellant on that aspect, nevertheless failed to appreciate the
other circumstances which materially affected the credibility of the
prosecution case relating to want of consent.
13. Learned counsel finally submitted that, even otherwise, the
appellant has already undergone approximately 9 years and 9 months of
incarceration against the sentence of ten years imposed upon him. His
conduct in custody has been reported to be satisfactory and there is no
other criminal case or violation of any condition reported against him. It
is, therefore, submitted that, having regard to the period already
undergone, the nature of the relationship between the parties, the
material discrepancies in the prosecution case, absence of scientific
corroboration and the principles laid down in the aforesaid decisions, the
conviction of the appellant is unsustainable and he deserves to be
acquitted by allowing the present appeal.
14. Per contra, Mr. Jateswar Nayak, learned Additional Government
Advocate appearing for the respondent-State, supported the impugned
judgment of conviction and order of sentence and submitted that the

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learned Trial Court, upon a careful appreciation of the evidence available
on record, has rightly held the appellant guilty of the offence punishable
under Section 376(2)(n) of the IPC. It is contended that the testimony of
the victim (P.W.14) is clear, consistent and categorical with regard to the
repeated sexual assault committed upon her by the appellant and nothing
substantial could be elicited in her cross-examination so as to discredit
her testimony.
15. Learned Additional Government Advocate further submitted that
the mere fact that the victim was acquainted with the appellant or that
they were allegedly in a relationship would not, by itself, establish
consent to the sexual acts complained of. According to him, consent
must be a conscious and voluntary participation in the sexual act and
cannot be inferred merely from a prior relationship between the parties.
The learned Trial Court has rightly considered the specific deposition of
the victim that she had protested the acts of the appellant and, on such
evidence, rightly concluded that the sexual relationship was not
consensual.

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16. It is further submitted that the reliance placed by learned counsel
for the appellant upon the judgment in Bikash Behera (supra) is
misplaced, as the said decision turned upon its own peculiar facts and the
appreciation of evidence in that case. The learned Additional
Government Advocate submitted that the factual circumstances of the
present case are materially distinguishable and that the ratio of the said
decision cannot be mechanically applied without examining the evidence
available in the present case.
17. Learned Additional Government Advocate also submitted that the
absence of DNA examination or the absence of any particular medical
injury cannot, by itself, demolish the prosecution case when the
substantive evidence of the victim is otherwise found to be trustworthy.
It is contended that the testimony of the prosecutrix, if found to be
cogent and credible, does not require corroboration as a matter of law.
The learned Trial Court, having had the advantage of examining the
evidence of the witnesses and appreciating their demeanour, has
recorded a well-reasoned finding of guilt which does not call for
interference in appeal.

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18. Before proceeding further, it is made clear that this Court is not
called upon to examine the acquittal of the appellant of the offences
punishable under Section 417 of the IPC and Section 6 of the POCSO
Act, as the said acquittal has not been assailed before this Court. The
consideration in the present appeal is, therefore, confined to the
appellant’s conviction under Section 376(2)(n) of the IPC.
19. Having heard learned counsel for the parties and upon careful
consideration of the evidence on record, the principal question that arises
for consideration is whether the prosecution has been able to establish
beyond reasonable doubt that the physical relationship between the
appellant and the victim was without her consent. The conviction under
Section 376(2)(n) of the IPC rests substantially upon the testimony of
P.W.14, the victim.
20. It is not in dispute that the victim and the appellant were
acquainted and, according to her statement recorded under Section 164
of the Cr.P.C., they were in a love relationship and their physical
relationship developed on the assurance of marriage. The said statement

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assumes significance while appreciating her subsequent testimony before
the Trial Court. Though a prior relationship or an assurance of marriage
cannot, by itself, establish consent, the entire course of the relationship
and the surrounding circumstances are required to be examined to
determine whether the prosecution has established absence of consent
beyond reasonable doubt.
21. In the present case, there is material variation between the
statement of the victim under Section 164 of the Cr.P.C. and her
subsequent deposition as P.W.14. The prosecution has also not been able
to establish that the appellant had made a false promise of marriage from
the inception with no intention to honour the same. The fact that the
relationship subsequently deteriorated and did not culminate in marriage
cannot, by itself, convert a consensual relationship into an offence of
rape.
22. The learned Trial Court itself found that the prosecution had failed
to establish the minority of the victim and consequently extended the
benefit of doubt to the appellant on the applicability of the POCSO Act.
The Trial Court also acquitted the appellant of the charge under Section

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417 of the IPC, observing that there was no evidence to establish that he
had fraudulently or dishonestly induced the victim by alluring her with a
promise of marriage. Though such finding is not by itself determinative
of the charge under Section 376(2)(n) of the IPC, it is certainly a relevant
circumstance while appreciating the overall prosecution case concerning
the nature of the relationship between the parties.
23. The prosecution case is further required to be considered in the
light of the medical and scientific evidence. No DNA or genetic
examination was conducted to establish that the child born to the victim
was fathered by the appellant. It is true that non-conduct of DNA
examination, by itself, cannot be a ground to discard an otherwise
reliable prosecution case. Nevertheless, where the paternity of the child
constitutes a relevant circumstance and the prosecution case substantially
rests upon the testimony of the victim, such scientific evidence has its
own corroborative value, and its absence assumes significance when
considered along with the other circumstances appearing on record.

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24. The discrepancies regarding the scribe and preparation of the FIR,
the material variations in the evidence, the statement of the victim under
Section 164 of the Cr.P.C., the absence of DNA examination and the
lack of significant medical corroboration, when considered cumulatively
with the admitted prior relationship between the parties, create a
reasonable doubt regarding the prosecution version of repeated forcible
sexual intercourse. These circumstances cannot be considered in
isolation but have to be assessed in their entirety.
25. The principles laid down by this Court in Bikash Behera v. State
of Orissa in CRA No.288 of 1997 , relied upon by learned counsel for the
appellant, are also relevant in this context. Though every case has to be
decided on its own facts, the said decision emphasises the necessity of
considering the prolonged relationship between the parties, the
surrounding circumstances, the conduct of the parties, the delay in
disclosure and the availability or otherwise of medical and scientific
corroboration while determining whether the prosecution has established
absence of consent.

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26. This Court is conscious to the settled principle of law that, the
testimony of a prosecutrix, if found to be wholly reliable and
trustworthy, can by itself form the basis of conviction and does not
require corroboration as a matter of law. However, in the present case,
having regard to the aforesaid circumstances and the material variations
in the prosecution evidence, the testimony of P.W.14 does not inspire
such confidence as would safely sustain a conviction for the offence
under Section 376(2)(n) of the IPC.
27. It is a settled principle of criminal jurisprudence that the
prosecution must establish the guilt of the accused beyond reasonable
doubt. Where the evidence admits of two reasonably possible views, the
one favourable to the accused must prevail. On a cumulative assessment
of the evidence, this Court is of the considered view that the prosecution
has failed to establish beyond reasonable doubt that the physical
relationship between the appellant and the victim was without her
consent. The appellant is, therefore, entitled to the benefit of doubt.
28. It is also relevant that the appellant has already undergone
approximately 9 years and 9 months of custody against the sentence of

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ten years imposed by the learned Trial Court. His conduct in custody has
been reported to be satisfactory and, as per the report of the I.I.C.,
Beltuluri P.S., no other criminal case or violation has been reported
against him apart from the present case. Though the period already
undergone cannot determine the question of guilt, the same is a relevant
circumstance in the overall consideration of the matter.
29. Hence, the judgment of conviction and order of sentence dated
30.03.2019 passed by the learned Additional District and Sessions
Judge-cum-Special Judge, Nuapada in S.A. No.91 of 2017, convicting
the appellant under Section 376(2)(n) of the IPC and the subsequent
order of sentence, are hereby set aside. The appellant is acquitted of the
charge under Section 376(2)(n) of the IPC. The appellant, who is
currently in custody, shall be released upon communication of this
judgment.
30. Accordingly, the Criminal Appeal is allowed.

(S.S. Mishra)
Judge

The High Court of Orissa, Cuttack
st
Dated the 31 day of October, 2026/ Subhasis Mohanty
Digitally Signed
Signed by: SUBHASIS MOHANTY
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 03-Nov-2026 12:54:24
Signature Not Verified

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