IN THE HIGH COURT OF ORISSA AT CUTTACK

CRA No.244 of 1997

CNR-ODHC010003431997

(In the matter of an application under Section 374(2) of the Criminal

Procedure Code, 1973)

Babulal Bhoi ……. Appellant

-Versus-

State of Odisha ……. Respondent

For the Appellant : Mr. Sumit Lal, Amicus Curiae

For the Respondent : Mr. Aurobinda Mohanty, ASC

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 11.08.2026 : Date of Judgment: 25.08.2026

S.S. Mishra, J. The present Criminal Appeal is arising out of the

judgment dated 20.10.1997 passed by the learned Sessions Judge,

Bolangir in Sessions Case No.2 of 1997, whereby the appellant has

been convicted for the offences punishable under Section 376 of the

Indian Penal Code and Section 3(1)(xi) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, “the

SC/ST Act”) and has been sentenced to undergo rigorous

imprisonment for seven years and three years respectively. Both the

sentences have been directed to run concurrently.

Page 2 of 22

2. The present appeal has been pending since 1997. When the

matter was called for hearing, Mr. H.S. Mishra, learned counsel for

the appellant, submitted that he has no instruction from his client in

this matter. So, he recuses from this matter. Therefore, on 11.08.2026,

this Court requested Mr. Sumit Lal, learned counsel, who was present

in Court to assist the Court as Amicus Curiae. He has readily accepted

the same and after obtaining entire record, assisted the Court very

effectively. He has also filed written notes of submission along with

relied upon judgments. This Court records appreciation for the

meaningful assistance rendered by Mr. Lal.

3. Heard Mr. Sumit Lal, learned Amicus Curiae appearing for the

appellant and Mr. Aurobinda Mohanty, learned Additional Standing

Counsel appearing for the Respondent-State.

4. The prosecution case, in brief, is that the prosecutrix, P.W.1,

was married to P.W.6-Jayaram Sahani and was residing with him. On

02.03.1996, while she was allegedly present in the vegetable garden

of her husband at Podhmunda, the appellant is alleged to have

approached her, caught hold of her saree, dragged her into a hut

situated in the garden and forcibly committed sexual intercourse with

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her. It was further alleged that in the course of the occurrence her

blouse was torn, her religious thread was snapped and her glass

bangles were broken. The prosecution further alleged that P.W.6 and

P.W.10 arrived at the spot and the appellant thereafter fled from the

place of occurrence. On the basis of the oral report lodged by P.W.1

on 04.03.1996, Khaprakhol P.S. Case No.20 of 1996 was registered

for the offences under Section 376 of the IPC and Section 3(1)(xi) of

the SC/ST Act.

5. The prosecution examined eleven witnesses. The prosecution

also relied upon Exts.1 to 10, and material exhibits M.Os I to VI. The

defence, on the other hand, is one of denial.

6. The learned trial Court, upon appreciation of the evidence

adduced by the prosecution, held the prosecution case to have been

established beyond reasonable doubt. The learned trial Court placed

substantial reliance upon the testimony of the prosecutrix (P.W.1),

finding her evidence cogent, consistent and trustworthy and observing

that her cross-examination had not materially shaken her version. The

evidence of P.Ws.2, 6 and 10 was treated as corroborative of her

presence with the appellant at the place of occurrence. The learned

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trial Court also relied upon the medical evidence of P.W.5, who had

found abrasions on the chest and right elbow and a bruise on the back

of the prosecutrix, and opined that such injuries could be caused by

forcibly laying her on a rough surface. The seizure of the broken

bangles and religious thread from the spot, coupled with the detection

of semen stains on the saree of the prosecutrix and the lungi of the

appellant, was also relied upon as corroborative circumstances

supporting the allegation of forcible sexual intercourse. The defence

plea that the sexual act was consensual was rejected. The learned trial

Court further disbelieved Exts.A, B and C and the evidence of

D.Ws.1 and 2 relating to the caste meeting, holding that there were

substantial discrepancies in the documents and that the same appeared

to have been subsequently manufactured to support the defence

version. Consequently, the learned trial Court held that the

prosecution had proved the commission of rape under Section 376

IPC beyond reasonable doubt. It further held that the prosecutrix

belonged to a Scheduled Tribe and the appellant was not a member of

a Scheduled Caste or Scheduled Tribe and concluded that by

committing rape upon the prosecutrix, the appellant had dishonoured

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and outraged her modesty and exposed her to contempt and indignity,

thereby attracting Section 3(1)(xi) of the SC/ST (Prevention of

Atrocities) Act, 1989. The relevant part of the aforesaid judgment is

reproduced herein for ready reference:-

“Thus ocular accounts of P.Ws.1, 2, 6 and 10, medical

evidence available from the mouth of P.W.5 and

seizure of incriminating material exhibits Exts.1 to VI

establish beyond reasonable doubt that the prosecutrix

was subjected to forcible sexual intercourse without

her consent, against her will and inspite of her stiff

resistance. Therefore, prosecution has well

substantiated the allegation of commission of offence

of rape under section 376, I.P.C. by the accused

against the victim woman P.W.1.

18. There is absolutely no dispute that P.W.1 belongs

to SAHARA caste and is a member of Scheduled Tribe.

Assertions on this score made by P.W.1 find support

from the evidence of P.W.1 as well as D.Ws.1 and 2. It

is also admitted by the accused that he is not a member

of any Scheduled Caste or Scheduled Tribe. By

committing rape on her the accused not only intended

to dishonour and outrage the victim woman's modesty

but also exposed her to utter contempt and indignity

even in the estimation of her husband P.W.6.

Therefore, prosecution has also established

commission of offence under section 3(1)(xi) of the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 beyond reasonable doubt.

19. In the result, accused Babulal Bhoi is found guilty

of offences under section 376, I.P.C. and section

3(1)(xi) of the Scheduled Castes and Scheduled Tribes

Page 6 of 22

(Prevention of Atrocities) Act, 1989 and convicted

thereunder.”

7. Mr. Lal, learned Amicus Curiae appearing for the appellant

submitted that the impugned judgment of conviction is unsustainable

in law as the learned trial Court failed to appreciate the evidence in its

entirety and placed undue reliance upon the testimony of the

prosecutrix while overlooking the material contradictions and

circumstances emerging from the evidence of the prosecution

witnesses themselves. He contended that the evidence of P.W.6, the

husband of the prosecutrix, materially contradicts the prosecution

version, as he stated that he had found the prosecutrix and the

appellant together in the cottage and suspected an illicit relationship

between them, pursuant to which a caste meeting was convened. He

placed reliance upon the evidence of D.Ws.1 and 2 and Exts.A and B

relating to the caste meeting, which, according to the learned Amicus

Curiae, supported the defence plea that the sexual act was consensual

rather than forcible. He further submitted that the prosecutrix herself

admitted in cross-examination that the appellant had not held her

while removing his apparel and that she had neither assaulted him nor

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attempted to use any of the agricultural implements available in the

cottage. The learned Amicus Curiae argued that these circumstances,

coupled with the evidence of the Investigating Officer that he found

no other sign of violence at the place of occurrence except the broken

bangles and torn religious thread, created a serious doubt regarding

the prosecution allegation of forcible sexual intercourse.

8. Mr. Lal further contended that the medical evidence had been

selectively relied upon by the learned trial Court. Although P.W.5

found certain abrasions and bruises on the prosecutrix, there was no

injury on her vagina or vulva, while P.W.4, who examined the

appellant, found no injury on his private parts, knees, elbows, face or

neck. Thus, the medical evidence, at best, established sexual contact

but could not conclusively establish that the intercourse was forcible

or without consent. He also challenged the conviction under Section

3(1)(xi) of the SC/ST Act on the ground that the statutory requirement

of a valid investigation under Rule 7 of the SC/ST (Prevention of

Atrocities) Rules, 1995 had not been complied with, since the

investigation was conducted by P.W.11, a Sub-Inspector, whereas the

Rules require investigation of an offence under the Act by a police

Page 8 of 22

officer not below the rank of Deputy Superintendent of Police. He

relied upon the law laid down by the Hon'ble Supreme Court in State

of Madhya Pradesh v. Babbu Rathore & Anr., in Crl. Appeal

No.123 of 2020, it was urged that the investigation into the offence

under the SC/ST Act by an officer below the prescribed rank was

illegal and consequently the conviction under Section 3(1)(xi) could

not be sustained. On these grounds, learned Amicus Curiae prayed for

setting aside the impugned judgment of conviction and acquitting the

appellant of the charges.

9. Before examining the rival submissions on the charge under

Section 376 of the IPC, it would be appropriate to first consider the

legality of the conviction recorded under Section 3(1)(xi) of the

SC/ST Act. Section 9 of the SC/ST Act confers power upon the State

Government to confer, by notification, powers of investigation in

respect of offences under the Act upon specified police officers. In

exercise of the rule-making power, Rule 7 of the Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Rules, 1995

prescribes the rank of the investigating officer. Rule 7(1), in clear

terms, provides that an offence committed under the Act shall be

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investigated by a police officer not below the rank of Deputy

Superintendent of Police. The rule further contemplates appointment

of such investigating officer by the State Government, Director

General of Police or Superintendent of Police, having regard to his

experience, ability and sense of justice.

10. The Honorable Supreme Court, while considering the scope of

Section 9 of the Act read with Rule 7 of the Rules, has authoritatively

held in State of Madhya Pradesh v. Babbu Rathore & Anr., in

Criminal Appeal No.123 of 2020, that Rule 7 prescribes that the

investigation of an offence under the Act shall be conducted by a

police officer not below the rank of Deputy Superintendent of Police

and that an officer below that rank cannot act as the investigating

officer in respect of an offence under the Act. The Supreme Court

reiterated that investigation of an offence under Section 3 of the

SC/ST Act by an officer not appointed in terms of Rule 7 is illegal

and invalid.

The same principle had earlier been enunciated by the

Supreme Court in State of M.P. v. Chunnilal @ Chunni Singh,

reported in (2009) 12 SCC 649, which was expressly noticed and

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relied upon in Babbu Rathore. The Supreme Court held that Section

9 of the Act, Rule 7 of the Rules and Section 4 of the Code of

Criminal Procedure, when read together, lead to the conclusion that

investigation of an offence under Section 3 of the SC/ST Act by an

officer not appointed in terms of Rule 7 is illegal and invalid. It was

held thus:-

“6. By virtue of its enabling power it is the duty and

responsibility of the State Government to issue

notification conferring power of investigation of cases

by notified police officer not below the rank of Deputy

Superintendent of Police for different areas in the

police districts. Rule 7 of the Rules provided rank of

investigation officer to be not below the rank of Deputy

Superintendent of Police. An officer below that rank

cannot act as investigating officer.

The provisions in Section 9 of the Act, Rule 7 of

the Rules and Section 4 of the Code when jointly read

lead to an irresistible conclusion that the investigation

to an offence under Section 3 of the Act by an officer

not appointed in terms of Rule 7 is illegal and invalid.

But when the offence complained are both under

the IPC and any of the offence enumerated in Section 3

of the Act the investigation which is being made by a

competent police officer in accordance with the

provisions of the Code cannot be quashed for non-

investigation of the offence under Section 3 of the Act

by a competent police officer. In such a situation the

proceedings shall proceed in appropriate Court for the

offences punishable under the IPC notwithstanding

investigation and the charge sheet being not liable to be

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accepted only in respect of offence under Section 3 of

the Act for taking cognizance of that offence.”

Applying the aforesaid principle to the facts of the present

case, this Court has no hesitation in holding that the investigation

undertaken by P.W.11, a Sub-Inspector, in respect of the offence

under Section 3(1)(xi) of the SC/ST Act was contrary to the express

mandate of Rule 7 of the 1995 Rules. Therefore, the non-compliance

with Rule 7, by itself, operates against the conviction recorded under

Section 3(1)(xi) of the SC/ST Act.

11. In view of the aforementioned, this Court arrived at an

inevitable conclusion that the conviction recorded by the learned trial

Court against the appellant of the charges punishable under Section

3(1)(xi) of the SC & ST Act is not sustainable in the eye of law.

Hence, the appellant is acquitted of the said charges. Now, the

question regarding the validity of the findings recorded by the learned

trial Court regarding the guilt of the appellant for the offence

punishable under Section 376 of IPC needs to be analysed on the

basis of the evidence on record.

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12. To appreciate the evidence on record in regard to the said

offence, two aspects need to be ascertained on the basis of materials

available record.

Firstly, whether the learned Sessions Judge, Bolangir has

rightly analysed the evidence to hold that the prosecution proved the

offence of rape against the appellant beyond all reasonable doubt.

Secondly, from the evidence on record, whether the defence

plea of consent is established or not.

13. To deal with the first issue, the evidence of the victim-P.W.1

needs to be appreciated. P.W.1 in her testimony has deposed that

about one year back, at about 9 a.m., on a Saturday, she was alone in

the vegetable garden and was plugging tomatoes. The accused

Babulal came there and moved around her. Thereafter, he dragged her

to the cottage belonging to her. He caught hold of her saree from

behind and physically dragged her inside the hut. She raised alarm

upon which the accused threatened to remain silent. The accused

removed her saree and tore her blouse; he laid her on the ground.

Thereafter, he removed his lungi and chadi which he was wearing. In

that process, she sustained injuries on her elbows, back and chest

Page 13 of 22

when the accused forcibly pinned her down on the ground. She

further deposed that the accused, laying her down on the ground,

forcefully committed rape on her despite protest. All of a sudden, her

husband-P.W.6- Jayaram and her brother-P.W.10-Jenamani Naik

reached at the spot. Seeing the accused Babulal, both P.W.6 and

P.W.10 got annoyed. There was exchange of hot words between

them. At that point of time, she narrated regarding the entire

occurrence to her husband-P.W.6. In the cross-examination, she

deposed that accused did not hold her but he was near to her when he

removed his lungi and chadi. At that time, when she tried to get up,

the accused again caught hold of her saree. To the suggestion of the

defence, she has also deposed that she did not physically resist the act

either by scratching the accused with her nail or forcefully pushing

her. This part of her evidence corroborated with the evidence of the

doctor-P.W.5. The prosecutrix was examined by P.W.5 after two days

of the incident and he found the following injuries:

(ii) There were injury marks like abrasions found on her chest,

right elbow, back and on the left breast. However, no injury was

found either on her vagina or valva.

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(iii) The injury on the right wrist was although found to be

simple, but it was measured to be 1/8" X 1/6".

Similarly, the injury on the right elbow was measured to be 1/6"

X 1/4" whereas the injury at the back of the prosecutrix was measured

to be 15" X 1".

The doctor further deposed that the abrasions and bruises found

on P.W.1, prosecutrix could be possible by commission of rape on her

by forcefully laying her down on the ground having rough surface.

14. Since the prosecutrix very specifically attributed the overt act

to the accused appellant and described the incident in minute detail

which stood corroborated with the evidence of the doctor, who found

the corresponding injuries on her body, the evidence of the

prosecutrix cannot be doubted in regard to the occurrence. Therefore,

the commission of the offence of rape on the basis of the evidence on

record cannot be ruled out.

15. Having found that the appellant has committed the sexual

intercourse with the prosecutrix-P.W.1, the vital question to be

considered is whether such sexual encounter had happened on the

consent of the prosecutrix or not.

Page 15 of 22

16. To appreciate the same, the evidence of two post-occurrence

witnesses, namely, P.W.6 and P.W.10 needs to be carefully

appreciated. P.W.6 is the husband of P.W.1 the prosecutrix. He, in his

evidence has deposed that when he along with P.W.10 reached at the

vegetable garden, they found accused Babulal coming out from the

cottage. P.W.1 also came out thereafter. He entertained suspicion on

seeing them emerging out of the cottage in quick succession. He

entered into the cottage and told P.W.10 that his cousin sister was

engaged in illicit relationship. P.W.10 replied that he would be a

witness to such conduct. Further, he deposed that his wife P.W.1 was

a lady of immoral character. Therefore, he sought for divorce from

her before the Panchayat. On the following day, i.e., on Sunday, a

meeting of the community was called for on the basis of his written

complaint before them which is Ext.A. The prosecutrix appeared in

the meeting. On being enquired, she admitted her guilt.

17. P.W.10, the cousin brother of the prosecutrix had deposed that

P.W.6 asked him to accompany him to his bari. As soon as they

reached near the bari, they could hear the noise from inside the

cottage belonging to P.W.6. P.W.1, the prosecutrix was shouting to

Page 16 of 22

leave her. He rushed towards the hut and found the accused with

P.W.1 inside the hut. The wearing apparel of P.W.1 was torn and then

the accused fled away. However, in the cross-examination, he

admitted that the Panchayat was called on the following day. A

faisalanama Ext.B was also written. P.W.6 wanted to divorce P.W.1,

being a woman of immoral character. He also deposed that P.W.1

admitted to such allegation against her character for which the caste

committee decided for divorce to be granted by P.W.6. Very

importantly, this witness has stated that P.W.1 went to the accused’s

house soon after conclusion of the committee meeting at night. None

accompanied her. He along with another cousin brother Birendra,

subsequently went to the house of the accused.

18. To further establish the defence of consensual sexual encounter

by the appellant with P.W.1, the defence has examined the Vice-

President of the Caste Committee as D.W.1. In his deposition, D.W.1

has stated that the caste committee was called on the basis of a written

complaint Ext.A given by P.W.6. In the meeting, P.W.6 has narrated

the incident, inter alia, stating that his wife, P.W.1 and accused were

inside the hut and were engaged in illicit relationship. When he

Page 17 of 22

discovered that he attempted to assault his wife, P.W.10 restrained

him. P.W.1 has admitted that she was with the accused in the hut by

her own volition. The admission of P.W.1 regarding the consensual

sexual encounter with the accused has been admitted before D.W.1.

Similarly, one of the members of the caste committee was also

examined as D.W.2. In his testimony, he has deposed that in the

meeting, P.W.6 alleged that though he had asked P.W.1 to go to the

market on Saturday and P.W.1 was found engaged in love talk with

the accused in the hut in his garden when P.W.6 and P.W.10 went

there. He deposed that P.W.6 got annoyed and tried to assault the

accused. However, P.W.10 obstructed him. Being asked, P.W.10 has

admitted that his sister P.W.1 and the accused were present in the hut.

He further deposed that he along with D.W.1 and other villagers went

to ascertain regarding the incident from P.W.1, the prosecutrix and

they confirmed from P.W.1 about the allegation. Thereafter, P.W.1

also came to the meeting and in that meeting as well, she admitted the

allegation to be true on the basis of which P.W.7 having heard P.W.1,

asked her not to visit their house and also a faisalanama Ext.B was

reduced down in writing.

Page 18 of 22

19. From the evidence of P.Ws.6, 10 and D.Ws.1 and 2, it is

eminently clear that the sexual encounter, which had taken place in

the cottage of P.W.6 appears to be a consensual act particularly

because from perusal of the evidence on record, it is found that when

the husband of the victim P.W.6 saw the accused and the victim also

at the cottage, the victim did not complain to the husband regarding

such incident. Rather, she narrated the said fact to her husband when

she was only asked about the same. From the deposition of the

husband of the victim and the other witnesses besides the Panch

faisalanama of Ext.B and the written complaint Ext.A, it appears that

the accused had illicit relationship with the victim.

20. The medical evidence, which stares on the face of record to

establish the offence of rape is only indicates minor injuries appeared

on the body of the victim, which may be consistent to the agriculture

work or because of a consensual intimacy. This further strengthens

from the fact that the accused bore no injuries on his body. Further,

from the evidence of P.W.11, the Investigating Officer, he found there

was no sign of any violence in the cottage. However, he found some

broken bangles and religious thread. There was no mark of violence

Page 19 of 22

in the cottage. Since the conviction under Section 376 of IPC requires

proof of absence of consent beyond all reasonable doubt, the evidence

as discussed above creates a reasonable doubt regarding the incident

as has been accounted by prosecutrix P.W.1.

P.W.1 herself in her cross-examination has stated that she has

not dealt any blow or scratched to the accused with her nail. No

physical resistance was shown by her during such act and the

evidence of P.W.4 further strengthens non-violence at the time of the

sexual act. P.W.4, who medically examined the accused, has deposed

that there was no injury on the private part of the accused and also

there was no injury detected on his knee, elbow, face or neck. Even

P.W.5, the doctor, who examined the prosecutrix, found no injury

mark on the vagina or valva of the prosecutrix.

Mr. Sumit Lal, learned Amicus Curiae appearing for the

appellant, has relied upon various judgments to substantiate his case

on the basis of the evidence as discussed above. Relying upon

paragraphs-40, 41, 42 and 43 of the judgment of the Hon’ble Supreme

Court in the case of Krishan Kumar Malik vs. State of Haryana,

reported in (2011) 7 SCC 130, Mr. Lal submitted that the scientific

Page 20 of 22

evidence in the present case is lacking to establish the prosecution

case. Paragraphs- 40, 41,42 and 43 of the said judgment read thus:

“40. The appellant was also examined by the doctor,

who had found him capable of performing sexual

intercourse. In the undergarments of the prosecutrix,

male semen were found but these were not sent for

analysis in the forensic laboratories which could

have conclusively proved, beyond any shadow of

doubt with regard to the commission of offence by the

appellant. This lacuna on the part of the prosecution

proves to be fatal and goes in favour of the appellant.

41. It is pertinent to mention here that the appellant

is a physically handicapped person to the extent of

55% as per doctor's report, and this fact is not

controverted by the prosecution. This much of

handicap of any person would be easily noticeable,

which the prosecutrix failed to mention at all. In fact,

this would have been much better identification of the

appellant, which the prosecutrix did not mention at

all.

42. On account of the aforesaid shortcomings,

irregularities and lacuna on the part of the

prosecution, in our considered opinion, it will not be

safe to convict the appellant.

43. With regard to the matching of the semen, we find

it from Taylor's Principles and Practice of Medical

Jurisprudence, 2nd Edn. (1965) as under:

“Spermatozoa may retain vitality (or free motion)

in the body of a woman for a long period, and

movement should always be looked for in wet

specimens. The actual time that spermatozoa may

remain alive after ejaculation cannot be precisely

defined, but is usually a matter of hours. Seymour

claimed to have seen movement in a fluid as much

as 5 days old. The detection of dead spermatozoa in

Page 21 of 22

stains may be made at long periods after emission,

when the fluid has been allowed to dry. Sharpe

found identifiable spermatozoa often after 12

months and once after a period of 5 years. Non-

motile spermatozoa were found in the vagina after

a lapse of time which must have been 3 and could

have been 4 months.”

Had such a procedure been adopted by the

prosecution, then it would have been a foolproof case

for it and against the appellant.”

Mr. Lal, learned Amicus Curiae has drawn the attention of this

Court to Ext.10, the chemical examination report. He submitted that

although P.W.1, the prosecutrix has stated in his examination-in-

chief, that while the accused was committing rape, semen stain fell on

her saree. The said saree worn by P.W.1 was seized and lungi worn

by the accused was also seized and sent for chemical examination.

Ext.10 is the chemical examination report, which reveals that no

opinion could be given regarding the presence of semen either in the

saree mark A or lungi mark B.

In view of the aforementioned, the nature of evidence, the

inevitable conclusion that is to be drawn on the analysis of the

evidence is that although the appellant and P.W.1 had sexual

intercourse on the date and time, as the witnesses have deposed, but

Page 22 of 22

the said sexual encounter appears to be consensual one. Therefore, the

appellant is entitled to the benefit of doubt.

21. Accordingly, the impugned judgment of conviction and the

order of sentence dated 20.10.1997 passed by the learned Sessions

Judge, Bolangir in Sessions Case No.2 of 1997 in so far as the offence

under Section 376 of IPC is concerned, the same stands set aside and

the appellant is acquitted of all the charges. The bail bond stands

discharged.

22. The Criminal Appeal is allowed.

23. This Court acknowledges the effective and meaningful

assistance rendered by Mr. Sumit Lal, learned Amicus Curiae in this

case. Learned Amicus Curiae is entitled to an honorarium of

Rs.7,500/- (Rupees seven thousand five hundred) to be paid as a

token of appreciation.

(S.S. Mishra)

Judge

The High Court of Orissa, Cuttack.

Dated the 25

th

August, 2026/Subhasis Mohanty