Gouranga Charan Sethy and Ganeswar Sethy Vs. State of Orissa

Decided On : Oct-31-2007

Court : Orissa

Notice (8): Undefined index: topics [APP/View/Case/meta.ctp, line 36]
Code Context


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			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  3 from whose quarter the victim was returning after attending Ekoisa celebration, the doctor (who examined the victim as well as petitioner-Gouranga), as P. Taking all these aspects into consideration, this Court feels that ends of justice shall be best served if the petitioners are released after due admonition under the provisions of Section 3 of the Probation of Offenders Act instead of awarding any sentence against them, and this Court directs accordingly.',
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			'judgement' => '<p style="text-align: justify;">Pradip Mohanty, J.</p><p style="text-align: justify;">1. Both the criminal revisions arise out of the judgment and order dated 18.11.2000 passed by the learned Addl. Sessions Judge, Angul in Criminal Appeal No. 8 of 1995/219 of 1997. Therefore, they were heard together and are disposed of by this common judgment. By the impugned order, the appellate Court has convicted the petitioner Gouranga under Section 354 IPC and petitioner Ganeswar under Section 354/109 IPC and sentenced each of them to pay a fine of Rs. 1000/- in default to undergo R.I. for one month by modifying the judgment and order dated 01.02.1995 passed by the learned C.J.M.-cum-Asst. Sessions Judge, Angul in S.T. Case No. 23 of 1993/Trial No. 19 of 1994 convicting Gouranga under Sections 376/511 IPC and Ganeswar under Sections 376/511/109 IPC and sentencing each of them to undergo R.I. for three years and six months and pay a fine of Rs. 1000/- in default to undergo further R.I. for one month.</p><p style="text-align: justify;">2. Case of the prosecution is that P.W.7 lodged information stating therein that on 31.10.1992 at night while his minor daughter Ranjita was returning home from the quarters of P.W.3 after attending Ekoisa celebration, both the petitioners, who* were then working as Constables in the P.T.C., Angul, called her to take Guava. When she refused, they forcibly dragged her, removed her undergarments and ravished her. Final form having been submitted, the petitioners were tried being charged under Sections 376/109 IPC.</p><p style="text-align: justify;">3. The plea of the petitioners was of complete denial. Specific plea of petitioner-Ganeswar was that the informant had asked him to depose falsely against accused Gouranga saying that Gouranga raped his younger daughter, but when he refused to oblige him, he has implicated him falsely in this case. Similarly, Gouranga has pleaded that the wife and the elder daughter of the informant were going to learn stitching along with his wife. Subsequently, however, there was a quarrel between him and the informant, who, out of grudge, has foisted this case against him.</p><p style="text-align: justify;">4. In order to prove its case, the prosecution examined as many as 12 witnesses including the victim as P.W.1, her mother as P.W.2 and father as P.W.7, who lodged the FIR, one Banamali Baral as P.W.3 from whose quarter the victim was returning after attending Ekoisa celebration, the doctor (who examined the victim as well as petitioner-Gouranga), as P.W.6 and the I.O. as P.W.12. The petitioners, however, did not choose to adduce any evidence either oral or documentary.</p><p style="text-align: justify;">5. The learned C.J.M.-cum-Asst. Sessions Judge, Angul, who tried the case, by his judgment dated 01.02.1995 convicted and sentenced the petitioners as already stated hereinbefore. The trial Court also directed that the fine amount, if realized, be given to the victim. Against that order, the petitioners preferred appeal registered as Criminal Appeal No. 8 of 1995/219 of 1997 before the learned Addl. Sessions Judge, Angul, who after hearing the parties partly allowed the appeal by modifying the judgment of conviction and sentence to the extent already indicated.</p><p style="text-align: justify;">6. Mr. Panda, learned Counsel for the petitioner Ganeswar submits that there is absolutely no material against him and he has been falsely implicated in the case. The appellate Court erred in appreciating the evidence of P.W.1 when the trial Court has observed that she being a child witness could give rational answers to some of the questions put to her and does not know the implication of the Court. This witness has not implicated the petitioner-Ganeswar in any manner, but the learned Sessions Judge has not appreciated the evidence of P.W.1 in a proper manner. Mr. Panda further submits that non-seizure of the torchlight cast serious doubt as to the authenticity, of the case as also the involvement of the petitioner Ganeswar in the alleged crime. There was no material before the appellate Court to hold that petitioner Ganeswar outraged the modesty of the victim (P.W.1) and/or abated the other petitioner Gouranga to outrage the modesty of P.W.1.</p><p style="text-align: justify;">Mr. Mishra appearing for the petitioner Gouranga submits that there are material contradictions in the evidence of P.Ws. 1, 3 and 7. Therefore, the entire prosecution case is highly suspicious.</p><p style="text-align: justify;">7. Mr. Behera, learned Addl. Govt. Advocate strenuously urges that the offence in which the petitioners are involved is heinous in nature. The victim was aged about 7 to 8 years at the time of incident. No infirmity or illegality has been committed by the appellate Court in passing the impugned order warranting interference by this Court.</p><p style="text-align: justify;">8. Perused the LCR including the depositions of P.Ws. 1, 3 and 7 and the medical report. Even though there are some contradictions in the evidence of P.Ws. 1, 3 and 7, this Court is not inclined to disbelieve their evidence. So far as the offence under Section 354 IPC is concerned, intention to outrage the modesty of the woman or knowledge that the act of the accused would result in outraging her modesty is the gravamen of the offence. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. The appellate Court has carefully considered these aspects and has rightly passed the impugned order.</p><p style="text-align: justify;">9. Now comes the question of sentence. Both the petitioners were serving as Constables. Due to their involvement in the present case, they have been removed from service and in the process have suffered a lot. They are quite young and are first offender. Taking all these aspects into consideration, this Court feels that ends of justice shall be best served if the petitioners are released after due admonition under the provisions of Section 3 of the Probation of Offenders Act instead of awarding any sentence against them, and this Court directs accordingly.</p><p style="text-align: justify;">The criminal revisions stand disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  3 from whose quarter the victim was returning after attending Ekoisa celebration, the doctor (who examined the victim as well as petitioner-Gouranga), as P. Taking all these aspects into consideration, this Court feels that ends of justice shall be best served if the petitioners are released after due admonition under the provisions of Section 3 of the Probation of Offenders Act instead of awarding any sentence against them, and this Court directs accordingly.',
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		'judgement' => '<p style="text-align: justify;">Pradip Mohanty, J.</p><p style="text-align: justify;">1. Both the criminal revisions arise out of the judgment and order dated 18.11.2000 passed by the learned Addl. Sessions Judge, Angul in Criminal Appeal No. 8 of 1995/219 of 1997. Therefore, they were heard together and are disposed of by this common judgment. By the impugned order, the appellate Court has convicted the petitioner Gouranga under Section 354 IPC and petitioner Ganeswar under Section 354/109 IPC and sentenced each of them to pay a fine of Rs. 1000/- in default to undergo R.I. for one month by modifying the judgment and order dated 01.02.1995 passed by the learned C.J.M.-cum-Asst. Sessions Judge, Angul in S.T. Case No. 23 of 1993/Trial No. 19 of 1994 convicting Gouranga under Sections 376/511 IPC and Ganeswar under Sections 376/511/109 IPC and sentencing each of them to undergo R.I. for three years and six months and pay a fine of Rs. 1000/- in default to undergo further R.I. for one month.</p><p style="text-align: justify;">2. Case of the prosecution is that P.W.7 lodged information stating therein that on 31.10.1992 at night while his minor daughter Ranjita was returning home from the quarters of P.W.3 after attending Ekoisa celebration, both the petitioners, who* were then working as Constables in the P.T.C., Angul, called her to take Guava. When she refused, they forcibly dragged her, removed her undergarments and ravished her. Final form having been submitted, the petitioners were tried being charged under Sections 376/109 IPC.</p><p style="text-align: justify;">3. The plea of the petitioners was of complete denial. Specific plea of petitioner-Ganeswar was that the informant had asked him to depose falsely against accused Gouranga saying that Gouranga raped his younger daughter, but when he refused to oblige him, he has implicated him falsely in this case. Similarly, Gouranga has pleaded that the wife and the elder daughter of the informant were going to learn stitching along with his wife. Subsequently, however, there was a quarrel between him and the informant, who, out of grudge, has foisted this case against him.</p><p style="text-align: justify;">4. In order to prove its case, the prosecution examined as many as 12 witnesses including the victim as P.W.1, her mother as P.W.2 and father as P.W.7, who lodged the FIR, one Banamali Baral as P.W.3 from whose quarter the victim was returning after attending Ekoisa celebration, the doctor (who examined the victim as well as petitioner-Gouranga), as P.W.6 and the I.O. as P.W.12. The petitioners, however, did not choose to adduce any evidence either oral or documentary.</p><p style="text-align: justify;">5. The learned C.J.M.-cum-Asst. Sessions Judge, Angul, who tried the case, by his judgment dated 01.02.1995 convicted and sentenced the petitioners as already stated hereinbefore. The trial Court also directed that the fine amount, if realized, be given to the victim. Against that order, the petitioners preferred appeal registered as Criminal Appeal No. 8 of 1995/219 of 1997 before the learned Addl. Sessions Judge, Angul, who after hearing the parties partly allowed the appeal by modifying the judgment of conviction and sentence to the extent already indicated.</p><p style="text-align: justify;">6. Mr. Panda, learned Counsel for the petitioner Ganeswar submits that there is absolutely no material against him and he has been falsely implicated in the case. The appellate Court erred in appreciating the evidence of P.W.1 when the trial Court has observed that she being a child witness could give rational answers to some of the questions put to her and does not know the implication of the Court. This witness has not implicated the petitioner-Ganeswar in any manner, but the learned Sessions Judge has not appreciated the evidence of P.W.1 in a proper manner. Mr. Panda further submits that non-seizure of the torchlight cast serious doubt as to the authenticity, of the case as also the involvement of the petitioner Ganeswar in the alleged crime. There was no material before the appellate Court to hold that petitioner Ganeswar outraged the modesty of the victim (P.W.1) and/or abated the other petitioner Gouranga to outrage the modesty of P.W.1.</p><p style="text-align: justify;">Mr. Mishra appearing for the petitioner Gouranga submits that there are material contradictions in the evidence of P.Ws. 1, 3 and 7. Therefore, the entire prosecution case is highly suspicious.</p><p style="text-align: justify;">7. Mr. Behera, learned Addl. Govt. Advocate strenuously urges that the offence in which the petitioners are involved is heinous in nature. The victim was aged about 7 to 8 years at the time of incident. No infirmity or illegality has been committed by the appellate Court in passing the impugned order warranting interference by this Court.</p><p style="text-align: justify;">8. Perused the LCR including the depositions of P.Ws. 1, 3 and 7 and the medical report. Even though there are some contradictions in the evidence of P.Ws. 1, 3 and 7, this Court is not inclined to disbelieve their evidence. So far as the offence under Section 354 IPC is concerned, intention to outrage the modesty of the woman or knowledge that the act of the accused would result in outraging her modesty is the gravamen of the offence. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. The appellate Court has carefully considered these aspects and has rightly passed the impugned order.</p><p style="text-align: justify;">9. Now comes the question of sentence. Both the petitioners were serving as Constables. Due to their involvement in the present case, they have been removed from service and in the process have suffered a lot. They are quite young and are first offender. Taking all these aspects into consideration, this Court feels that ends of justice shall be best served if the petitioners are released after due admonition under the provisions of Section 3 of the Probation of Offenders Act instead of awarding any sentence against them, and this Court directs accordingly.</p><p style="text-align: justify;">The criminal revisions stand disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'casename' => 'Gouranga Charan Sethy and Ganeswar Sethy Vs. State of Orissa',
			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  3 from whose quarter the victim was returning after attending Ekoisa celebration, the doctor (who examined the victim as well as petitioner-Gouranga), as P. Taking all these aspects into consideration, this Court feels that ends of justice shall be best served if the petitioners are released after due admonition under the provisions of Section 3 of the Probation of Offenders Act instead of awarding any sentence against them, and this Court directs accordingly.',
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			'judgement' => '<p style="text-align: justify;">Pradip Mohanty, J.</p><p style="text-align: justify;">1. Both the criminal revisions arise out of the judgment and order dated 18.11.2000 passed by the learned Addl. Sessions Judge, Angul in Criminal Appeal No. 8 of 1995/219 of 1997. Therefore, they were heard together and are disposed of by this common judgment. By the impugned order, the appellate Court has convicted the petitioner Gouranga under Section 354 IPC and petitioner Ganeswar under Section 354/109 IPC and sentenced each of them to pay a fine of Rs. 1000/- in default to undergo R.I. for one month by modifying the judgment and order dated 01.02.1995 passed by the learned C.J.M.-cum-Asst. Sessions Judge, Angul in S.T. Case No. 23 of 1993/Trial No. 19 of 1994 convicting Gouranga under Sections 376/511 IPC and Ganeswar under Sections 376/511/109 IPC and sentencing each of them to undergo R.I. for three years and six months and pay a fine of Rs. 1000/- in default to undergo further R.I. for one month.</p><p style="text-align: justify;">2. Case of the prosecution is that P.W.7 lodged information stating therein that on 31.10.1992 at night while his minor daughter Ranjita was returning home from the quarters of P.W.3 after attending Ekoisa celebration, both the petitioners, who* were then working as Constables in the P.T.C., Angul, called her to take Guava. When she refused, they forcibly dragged her, removed her undergarments and ravished her. Final form having been submitted, the petitioners were tried being charged under Sections 376/109 IPC.</p><p style="text-align: justify;">3. The plea of the petitioners was of complete denial. Specific plea of petitioner-Ganeswar was that the informant had asked him to depose falsely against accused Gouranga saying that Gouranga raped his younger daughter, but when he refused to oblige him, he has implicated him falsely in this case. Similarly, Gouranga has pleaded that the wife and the elder daughter of the informant were going to learn stitching along with his wife. Subsequently, however, there was a quarrel between him and the informant, who, out of grudge, has foisted this case against him.</p><p style="text-align: justify;">4. In order to prove its case, the prosecution examined as many as 12 witnesses including the victim as P.W.1, her mother as P.W.2 and father as P.W.7, who lodged the FIR, one Banamali Baral as P.W.3 from whose quarter the victim was returning after attending Ekoisa celebration, the doctor (who examined the victim as well as petitioner-Gouranga), as P.W.6 and the I.O. as P.W.12. The petitioners, however, did not choose to adduce any evidence either oral or documentary.</p><p style="text-align: justify;">5. The learned C.J.M.-cum-Asst. Sessions Judge, Angul, who tried the case, by his judgment dated 01.02.1995 convicted and sentenced the petitioners as already stated hereinbefore. The trial Court also directed that the fine amount, if realized, be given to the victim. Against that order, the petitioners preferred appeal registered as Criminal Appeal No. 8 of 1995/219 of 1997 before the learned Addl. Sessions Judge, Angul, who after hearing the parties partly allowed the appeal by modifying the judgment of conviction and sentence to the extent already indicated.</p><p style="text-align: justify;">6. Mr. Panda, learned Counsel for the petitioner Ganeswar submits that there is absolutely no material against him and he has been falsely implicated in the case. The appellate Court erred in appreciating the evidence of P.W.1 when the trial Court has observed that she being a child witness could give rational answers to some of the questions put to her and does not know the implication of the Court. This witness has not implicated the petitioner-Ganeswar in any manner, but the learned Sessions Judge has not appreciated the evidence of P.W.1 in a proper manner. Mr. Panda further submits that non-seizure of the torchlight cast serious doubt as to the authenticity, of the case as also the involvement of the petitioner Ganeswar in the alleged crime. There was no material before the appellate Court to hold that petitioner Ganeswar outraged the modesty of the victim (P.W.1) and/or abated the other petitioner Gouranga to outrage the modesty of P.W.1.</p><p style="text-align: justify;">Mr. Mishra appearing for the petitioner Gouranga submits that there are material contradictions in the evidence of P.Ws. 1, 3 and 7. Therefore, the entire prosecution case is highly suspicious.</p><p style="text-align: justify;">7. Mr. Behera, learned Addl. Govt. Advocate strenuously urges that the offence in which the petitioners are involved is heinous in nature. The victim was aged about 7 to 8 years at the time of incident. No infirmity or illegality has been committed by the appellate Court in passing the impugned order warranting interference by this Court.</p><p style="text-align: justify;">8. Perused the LCR including the depositions of P.Ws. 1, 3 and 7 and the medical report. Even though there are some contradictions in the evidence of P.Ws. 1, 3 and 7, this Court is not inclined to disbelieve their evidence. So far as the offence under Section 354 IPC is concerned, intention to outrage the modesty of the woman or knowledge that the act of the accused would result in outraging her modesty is the gravamen of the offence. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. The appellate Court has carefully considered these aspects and has rightly passed the impugned order.</p><p style="text-align: justify;">9. Now comes the question of sentence. Both the petitioners were serving as Constables. Due to their involvement in the present case, they have been removed from service and in the process have suffered a lot. They are quite young and are first offender. Taking all these aspects into consideration, this Court feels that ends of justice shall be best served if the petitioners are released after due admonition under the provisions of Section 3 of the Probation of Offenders Act instead of awarding any sentence against them, and this Court directs accordingly.</p><p style="text-align: justify;">The criminal revisions stand disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  3 from whose quarter the victim was returning after attending Ekoisa celebration, the doctor (who examined the victim as well as petitioner-Gouranga), as P. Taking all these aspects into consideration, this Court feels that ends of justice shall be best served if the petitioners are released after due admonition under the provisions of Section 3 of the Probation of Offenders Act instead of awarding any sentence against them, and this Court directs accordingly.',
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		'judgement' => '<p style="text-align: justify;">Pradip Mohanty, J.</p><p style="text-align: justify;">1. Both the criminal revisions arise out of the judgment and order dated 18.11.2000 passed by the learned Addl. Sessions Judge, Angul in Criminal Appeal No. 8 of 1995/219 of 1997. Therefore, they were heard together and are disposed of by this common judgment. By the impugned order, the appellate Court has convicted the petitioner Gouranga under Section 354 IPC and petitioner Ganeswar under Section 354/109 IPC and sentenced each of them to pay a fine of Rs. 1000/- in default to undergo R.I. for one month by modifying the judgment and order dated 01.02.1995 passed by the learned C.J.M.-cum-Asst. Sessions Judge, Angul in S.T. Case No. 23 of 1993/Trial No. 19 of 1994 convicting Gouranga under Sections 376/511 IPC and Ganeswar under Sections 376/511/109 IPC and sentencing each of them to undergo R.I. for three years and six months and pay a fine of Rs. 1000/- in default to undergo further R.I. for one month.</p><p style="text-align: justify;">2. Case of the prosecution is that P.W.7 lodged information stating therein that on 31.10.1992 at night while his minor daughter Ranjita was returning home from the quarters of P.W.3 after attending Ekoisa celebration, both the petitioners, who* were then working as Constables in the P.T.C., Angul, called her to take Guava. When she refused, they forcibly dragged her, removed her undergarments and ravished her. Final form having been submitted, the petitioners were tried being charged under Sections 376/109 IPC.</p><p style="text-align: justify;">3. The plea of the petitioners was of complete denial. Specific plea of petitioner-Ganeswar was that the informant had asked him to depose falsely against accused Gouranga saying that Gouranga raped his younger daughter, but when he refused to oblige him, he has implicated him falsely in this case. Similarly, Gouranga has pleaded that the wife and the elder daughter of the informant were going to learn stitching along with his wife. Subsequently, however, there was a quarrel between him and the informant, who, out of grudge, has foisted this case against him.</p><p style="text-align: justify;">4. In order to prove its case, the prosecution examined as many as 12 witnesses including the victim as P.W.1, her mother as P.W.2 and father as P.W.7, who lodged the FIR, one Banamali Baral as P.W.3 from whose quarter the victim was returning after attending Ekoisa celebration, the doctor (who examined the victim as well as petitioner-Gouranga), as P.W.6 and the I.O. as P.W.12. The petitioners, however, did not choose to adduce any evidence either oral or documentary.</p><p style="text-align: justify;">5. The learned C.J.M.-cum-Asst. Sessions Judge, Angul, who tried the case, by his judgment dated 01.02.1995 convicted and sentenced the petitioners as already stated hereinbefore. The trial Court also directed that the fine amount, if realized, be given to the victim. Against that order, the petitioners preferred appeal registered as Criminal Appeal No. 8 of 1995/219 of 1997 before the learned Addl. Sessions Judge, Angul, who after hearing the parties partly allowed the appeal by modifying the judgment of conviction and sentence to the extent already indicated.</p><p style="text-align: justify;">6. Mr. Panda, learned Counsel for the petitioner Ganeswar submits that there is absolutely no material against him and he has been falsely implicated in the case. The appellate Court erred in appreciating the evidence of P.W.1 when the trial Court has observed that she being a child witness could give rational answers to some of the questions put to her and does not know the implication of the Court. This witness has not implicated the petitioner-Ganeswar in any manner, but the learned Sessions Judge has not appreciated the evidence of P.W.1 in a proper manner. Mr. Panda further submits that non-seizure of the torchlight cast serious doubt as to the authenticity, of the case as also the involvement of the petitioner Ganeswar in the alleged crime. There was no material before the appellate Court to hold that petitioner Ganeswar outraged the modesty of the victim (P.W.1) and/or abated the other petitioner Gouranga to outrage the modesty of P.W.1.</p><p style="text-align: justify;">Mr. Mishra appearing for the petitioner Gouranga submits that there are material contradictions in the evidence of P.Ws. 1, 3 and 7. Therefore, the entire prosecution case is highly suspicious.</p><p style="text-align: justify;">7. Mr. Behera, learned Addl. Govt. Advocate strenuously urges that the offence in which the petitioners are involved is heinous in nature. The victim was aged about 7 to 8 years at the time of incident. No infirmity or illegality has been committed by the appellate Court in passing the impugned order warranting interference by this Court.</p><p style="text-align: justify;">8. Perused the LCR including the depositions of P.Ws. 1, 3 and 7 and the medical report. Even though there are some contradictions in the evidence of P.Ws. 1, 3 and 7, this Court is not inclined to disbelieve their evidence. So far as the offence under Section 354 IPC is concerned, intention to outrage the modesty of the woman or knowledge that the act of the accused would result in outraging her modesty is the gravamen of the offence. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. The appellate Court has carefully considered these aspects and has rightly passed the impugned order.</p><p style="text-align: justify;">9. Now comes the question of sentence. Both the petitioners were serving as Constables. Due to their involvement in the present case, they have been removed from service and in the process have suffered a lot. They are quite young and are first offender. Taking all these aspects into consideration, this Court feels that ends of justice shall be best served if the petitioners are released after due admonition under the provisions of Section 3 of the Probation of Offenders Act instead of awarding any sentence against them, and this Court directs accordingly.</p><p style="text-align: justify;">The criminal revisions stand disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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LAW: Section 354 IPC, Section 3 of the Probation of Offenders Act

CARDINAL: 18.11.2000, 23, 19, 376/511, one, as many as 12, one, 8, 1, 3, 1, 3, 7, 1, 3, 7

PERSON: Addl, Ranjita, Ekoisa, Guava, Ganeswar, Ekoisa, I.O., Angul, Addl, Angul, Panda, Panda, Ganeswar, Behera, Addl

WORK_OF_ART: Angul in Criminal Appeal No. 8 of 1995/219 of 1997

ORG: Court, Ganeswar under Section 354/109 IPC, IPC, Ganeswar under Sections 376/511/109 IPC, him.4, FIR, Banamali Baral, Court, Criminal Appeal No., Ganeswar, Court, Court, Court, Ganeswar, Court, Court, LCR, Court, Court, Court, Court

GPE: Gouranga, R.I., Gouranga, R.I., R.I., Angul, Gouranga, Gouranga, Gouranga, Counsel, Gouranga, Gouranga

DATE: 1000/-, one month, 1993, 1994, three years, six months, 1000/-, the quarters of P.W.3, 1995/219 of 1997, about 7 to 8 years

TIME: 31.10.1992 at night

NORP: P.Ws, P.Ws, P.Ws

ORDINAL: first