Orissa HC Confirms POCSO Gang Rape Conviction, Sets Aside Section 376(2)(n) Count for Lack of Individual Act Analysis
The Orissa High Court upheld 20-year rigorous imprisonment for two men convicted of abducting and gang-raping a 16-year-old girl in April 2016, while setting aside their conviction under Section 376(2)(n) IPC on the ground that the trial court never separately analysed whether repeated rape by each individual accused had been proved.
Dr. Justice Sanjeeb K Panigrahi, sitting singly at the High Court of Orissa at Cuttack, disposed of two criminal appeals by a common judgment on 25 June 2026, confirming the convictions of Pramod Bariha and Abhilash Bariha under Sections 363, 366, and 376(D) of the Indian Penal Code and under Sections 6 and 10 of the Protection of Children from Sexual Offences Act, 2012. Both men had been sentenced by the Special Judge, Bolangir to 20 years rigorous imprisonment and a fine of Rs. 10,000 each under Section 376(D) IPC. The court set aside their conviction under Section 376(2)(n) IPC — repeated rape by the same person on the same woman — because the trial court had framed and recorded that conviction without any independent analysis of individual acts. The sentence itself remained entirely unaffected, since it had been imposed under Section 376(D) IPC.
The Incident and Trial Below
On the night of 3 April 2016, when the victim's parents were away from village Salebarat, Abhilash Bariha visited her house on the pretext of purchasing a hen and paid Rs. 200 for it. Between 9 and 10 PM the same night, both accused returned. Abhilash caught hold of the victim, gagged her mouth, and both men physically lifted and carried her to Gidhghar Pahada, a hillock approximately 2 km from the village.
The victim was kept confined at Gidhghar Pahada from the night of 3 April 2016 until the morning of 5 April 2016 — two nights and one day. During that period, she was tied, denied food, and repeatedly raped by both accused. On the morning of 5 April 2016, the accused brought her down from the hillock and abandoned her near her house. She disclosed the incident to gathered villagers and subsequently to her parents, the police, and the Magistrate.
Her father, Dambarudhar Sahu (PW-1), had lodged an FIR on 4 April 2016 at Sindhekela PS reporting his minor daughter missing and suspecting kidnapping. The police registered PS Case No. 71/2016 under Section 363 IPC. After investigation, chargesheet was submitted on 5 July 2016 under Sections 363, 366, 376(D) IPC and Section 6 of the POCSO Act. The Special Court framed additional charges under Sections 376(2)(n) IPC and Section 10 POCSO on 8 March 2017.
The prosecution examined 18 witnesses. PW-2, the victim, was the sole eyewitness. PW-13, the medical officer who examined her on 5 April 2016, found recent signs of sexual intercourse, rupture of hymen, fresh hymenal tear, multiple abrasions on the right wrist and inner thighs, and clothes soiled with mud and whitish discharge. She assessed the victim's age as between 14 and 18 years. PW-16 and PW-17, the current and former Headmasters of Govt. PUPS Salebarat, produced the school admission register (Ext-13) showing the victim's date of birth as 17.12.1999. The defence examined no witnesses and relied on complete denial, attributing the case to prior enmity over a village pond construction dispute.
The Appellants' Challenge
Counsel for the appellants made five broad arguments. On age, they attacked the school admission register by pointing out that PW-17, who produced it, admitted in cross-examination that he could not state the basis of the date of birth entry, having not been posted at the school at the relevant time. They placed reliance on the Supreme Court's decision in Birka Shiva v. State of Telangana, (2024) SCC OnLine SC 3758, for the proposition that a school register entry whose foundational basis is unknown cannot be conclusive proof of age.
On jurisdiction, the appellants contended that the trial court had committed a fundamental legal error by invoking Section 34 of the POCSO Act to determine the victim's age, since that provision textually governs age determination of an accused, not a victim. On voluntariness, they relied on the FIR's reference to the victim having “gone somewhere” and gold ornaments going missing, arguing this was consistent with elopement. They also pointed to PW-13's finding that the victim was “habituated to sexual intercourse” as negating force. On identification, they argued that Pramod Bariha's name surfaced only in the concluding portion of PW-2's account, raising doubt about his implication. On corroboration, they highlighted the absence of independent eyewitnesses, the hearsay nature of PW-4 and PW-5's evidence, and the non-examination of Baidi Sahu, who allegedly witnessed the hen purchase.
Age Determination: School Register Prevails
The court held that the law on age determination of a child victim under the POCSO Act is governed by the hierarchy approved by the Supreme Court in Jarnail Singh v. State of Haryana, (2013) 7 SCC 263, which places the school register or matriculation certificate at the top. Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 sets out this hierarchy, and the Supreme Court in Shah Nawaz v. State of U.P., (2011) 13 SCC 751, held that a date of birth entry in a school register maintained in regular course and produced from proper custody carries a presumption of correctness unless affirmatively rebutted.
The decisive point on which the court distinguished Birka Shiva was the manner in which the challenge was mounted. In that case, the defence actively challenged the basis of the entry through specific cross-examination. Here, despite cross-examining PW-1, PW-2, PW-16, and PW-18 at length, the defence never put a specific suggestion to any witness that the date of birth entry of 17.12.1999 in Ext-13 was incorrect, fabricated, or entered on an erroneous basis. The court applied the rule in Laxmibai (Dead) Thr. L.Rs v. Bhagwantbuva (Dead) Thr. L.Rs, (2013) 4 SCC 97, that where a party wishes to dispute the correctness of a witness's statement, the witness must be specifically confronted with the disputed part. Without such confrontation, the presumption attaching to Ext-13 remained wholly unrebutted.
The medical range of 14 to 18 years given by PW-13 did not disturb this finding. Medical opinion on age is at best an approximation and must yield to documentary evidence when available. A date of birth of 17.12.1999 placed the victim at 16 years, 3 months and 17 days on 3 April 2016 — squarely within PW-13's range. The court answered the age issue in the affirmative.
On the Section 34 objection, the court acknowledged that the textual criticism had some force but found no jurisdictional infirmity. The trial court had used Section 34 as a procedural conduit to import the JJ Act hierarchy for age determination, and higher courts have consistently applied that same hierarchy in the absence of a dedicated statutory provision for determining the victim's age under the POCSO Act.
Credibility of the Prosecutrix
The court examined PW-2's testimony with care. Her account described the evening visit by Abhilash on the hen-purchase pretext, the return of both accused between 9 and 10 PM, Abhilash gagging her while both men together lifted and carried her to Gidhghar Pahada, the tying of her hands, denial of food over two nights and one day, and the repeated rape by both accused. This account was consistent across her Section 161 Cr.P.C. statement, her Section 164 statement before the Magistrate, and her deposition before the trial court. Extensive cross-examination did not elicit any material contradiction or omission.
The court applied the principle from State v. Gurmit Singh, (1996) 2 SCC 384, that the testimony of a victim of sexual assault stands on the same footing as an injured witness and that conviction can rest on the sole testimony of the prosecutrix when it inspires confidence. The court rejected the argument that Pramod Bariha's name appeared belatedly: PW-2 had stated from the outset that both accused came together between 9 and 10 PM and that both lifted and carried her. The natural sequence of narrating each participant's acts as they occurred does not amount to belated implication.
The submission based on PW-13's finding that the victim was “habituated to sexual intercourse” was firmly rejected. Section 53A of the Indian Evidence Act and the proviso to Section 146, inserted by the Criminal Law (Amendment) Act, 2013, expressly prohibit drawing any inference from prior sexual experience as to consent or credibility. In any event, the victim being a child of 16 years, consent is wholly immaterial under Section 3 read with Section 5 of the POCSO Act. The court deprecated the submission in strong terms, describing it as an attempt to place a minor victim under moral scrutiny and a form of victim-blaming which the law does not permit.
On the non-examination of Baidi Sahu, the court followed State of Orissa v. Thakara Besra, (2002) 9 SCC 86: a witness who saw only the hen purchase, itself an undisputed fact, was not an eyewitness to the offence and his non-examination was not a fatal infirmity. PW-4 and PW-5, to whom the victim narrated events immediately upon being abandoned near her house, were correctly admitted as res gestae witnesses under Section 6 of the Indian Evidence Act, their testimony constituting spontaneous declarations forming part of the same transaction.
Sections 363, 366, and 376(D) IPC: Ingredients Established
On Section 363, the victim was a female minor of 16 years, satisfying the statutory threshold of 18 years under Section 361 IPC for female minors. PW-2's unshaken evidence established that she was taken from her house, where she was in the constructive keeping of her parents, against her will and without their knowledge or consent. The FIR's reference to the victim having “gone somewhere” was explained by the fact that it was lodged on 4 April 2016, before the victim had returned and before the full facts were known. The court applied the principle from Amish Devgan v. Union of India, AIRONLINE 2020 SC 930, that an FIR is not a detailed chronicle of all intricate and minute details of an offence.
On Section 366, the abduction at night, confinement at a secluded hillock for two nights and one day, and repeated rape during that confinement left no room for doubt that the taking was with the intent to compel illicit intercourse. On Section 376(D), the court relied on Ashok v. State, (2003) 2 SCC 143, to hold that it is not necessary to prove a completed act of penetrative assault by each accused separately. The joint participation of both appellants from the inception of the abduction through the entire period of confinement and assault established common intention beyond reasonable doubt. The absence of physical signs of recent intercourse on the accused, examined two days after the incident, was fully explained by PW-7 and PW-12, both of whom stated that regular bathing over the intervening period was sufficient to eliminate biological traces. That explanation was unchallenged by any contrary medical evidence.
The plea of false implication over a pond construction dispute was rejected. The medical evidence of PW-13 — fresh hymenal tear, multiple abrasions, and soiled clothing, documented within hours of the victim's return — constituted objective corroboration wholly inconsistent with fabrication. A minor girl would not ordinarily expose herself to the ordeal of a rape trial to settle a village score.
Section 376(2)(n) IPC: Conviction Set Aside
Section 376(2)(n) IPC requires proof that the same accused committed rape repeatedly on the same woman. The trial court had framed this charge and recorded conviction under it without undertaking any independent analysis of whether the evidence established repeated acts by each individual accused.
PW-2 stated that “both accused repeatedly committed rape on her” during confinement. That general statement, while establishing the overall course of conduct, did not particularise how many times each accused committed the act, at what intervals, and in what sequence. The expression “repeatedly” in the context of a joint confinement involving two accused made it inherently difficult to segregate individual acts attributable to each for the purpose of Section 376(2)(n).
The court set aside the conviction under Section 376(2)(n) in the interest of precision. It immediately made clear, however, that this modification had no bearing whatsoever on the substantive sentence. The operative sentence of 20 years rigorous imprisonment under Section 376(D) IPC, which carries the same minimum punishment, already stood confirmed, and all other sentences ran concurrently.
Sentencing Framework Confirmed
The trial court had awarded the minimum prescribed sentence of 20 years RI with a fine of Rs. 10,000 under Section 376(D) IPC. It had applied Section 42 of the POCSO Act to avoid double punishment for the same act under both IPC and POCSO, and had correctly held that the 2019 amendment to Section 6 of the POCSO Act enhancing minimum punishment to 20 years could not be applied retrospectively to an offence committed in April 2016, since penal amendments are presumed prospective. The directions for concurrent running of sentences, set-off of pre-conviction detention under Section 428 Cr.P.C., victim compensation under Section 357 Cr.P.C., and DLSA compensation of Rs. 4,00,000 were all confirmed.
Order
The two criminal appeals were partly allowed to the limited extent of setting aside the conviction under Section 376(2)(n) IPC, and were dismissed in all other respects. The convictions under Sections 363, 366, and 376(D) IPC and under Sections 6 and 10 of the POCSO Act were confirmed. The sentence of 20 years rigorous imprisonment with a fine of Rs. 10,000 under Section 376(D) IPC, with all other sentences running concurrently, was confirmed. The set-off under Section 428 Cr.P.C., victim compensation under Section 357 Cr.P.C., and DLSA compensation of Rs. 4,00,000 were directed to remain undisturbed. The appellants, stated to be in custody, were directed to continue serving the sentence. Any interim order passed earlier was vacated.