The Orissa High Court has recently held that undressing a girl under the age of 12 years, sleeping over her and merely asking her to penetrate her private part with the male organ of the accused does not amount to rape.
The bench noted that such an act would come under the purview of ‘aggravated sexual assault’ punishable under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (the ‘POCSO Act’) and not ‘rape’ as per the definition of section 375 of the I.P.C. or penetrative sexual assault as per definition under Section 3 of the POCSO Act.
Brief Facts:
The victim, who was five years old at the time, went out to play in the afternoon but did not come back home. Concerned, the mother conducted a thorough search but was unable to find her child. Later that night, the mother discovered the victim in a naked state, and upon questioning, the victim disclosed that she had been raped by the appellant.
Consequently, an FIR was lodged on 09.05.2015 under Section 376(2)(i) of the IPC and Section 6 of the POCSO Act. Following the registration of the case, the admission register of the victim's school, where she was enrolled, was seized and during this process that the victim's date of birth was found to be 24.03.2008.
Upon completion of the investigation, a charge sheet was filed against the appellant, accusing him of offenses under Section 376(2)(i) of the IPC and Section 6 of the POCSO Act. The Trial Court, after considering the evidence, found the accused guilty of the aforementioned charges and subsequently sentenced him. Dissatisfied with the conviction, the appellant filed an appeal before the High Court.
Contentions of the appellant:
Mr. Malaya Kumar Swain contended that the evidence of the victim runs contrary to the evidence of her parents and since the medical evidence adduced does not corroborate the ocular evidence regarding the commission of rape on the victim and even though the victim was held to be below twelve years of age at the time of occurrence, it cannot be said that the prosecution has successfully established the charges against the appellant and therefore, the benefit of doubt should be extended in favour of the appellant.
Contentions of the Respondent:
Mrs. Susamarani Sahoo, learned Additional Standing Counsel, on the other hand supported the impugned judgment and argued that in view of the documentary evidence as well as ocular evidence, it has been established that the victim was seven years of age at the time of occurrence. The victim has stated about the commission of rape on her by the appellant and disclosed about the same before her parents immediately after the occurrence. Even though the evidence of the doctor does not indicate any bodily injury on the victim or any physical clue of sexual assault on her, however, the same cannot be a ground to disbelieve the prosecution case. Therefore, the learned trial Court has rightly held the appellant guilty under section 376(2)(i) of the I.P.C. and section 6 of the POCSO Act.
Observations of the Court:
The court observed that the girl admitted before police that the appellant had closed her mouth and told her to put his penis inside her mouth and further told her to put his penis in her vagina and the appellant left her at about midnight.
The bench further noted that even though P.W.2 stated that the victim disclosed before her that the appellant after undressing her asked her to suck his penis and that the appellant was also touching his penis with her vagina but the evidence of the victim is silent in that respect.
The bench remarked, “The statement of the victim in her examination-in-chief is completely silent that the appellant penetrated his penis, to any extent, into her vagina or any part of her body or made her to do the same with him, or the appellant inserted any object or a part of his body to any extent, not being the penis, into her vagina or any other part of her body. Her evidence is also silent that the appellant manipulated any part of her body so as to cause penetration into her vagina or any part of her body or made her do so with him. Her evidence is also silent that the appellant applied his mouth to her vagina or anus, urethra or made her to apply her mouth to his penis. Therefore, it is very difficult to hold that the ‘rape’ as per the definition of section 375 of the I.P.C. or penetrative sexual assault as per definition under Section 3 of the POCSO Act has been committed on the victim by the appellant.”
The bench further observed, “even though the victim has not stated that the appellant undressed himself, in my humble view, the same would be an act of the appellant with sexual intent, which involved physical contact with the victim without penetration and therefore, it would come within the definition of ‘sexual assault’ as defined under section 7 of the POCSO Act and since the age of the victim has been proved to be below twelve years, thus the prosecution can be said to have established that the appellant committed ‘aggravated sexual assault’ with the victim (P.W.1).”
Judgment:
In view of the foregoing discussions, in my humble view, the impugned judgment and order of conviction of the appellant under section 376(2)(i) of the I.P.C. and section 6 of the POCSO Act is not sustainable in the eyes of law and accordingly, the same is hereby set aside, instead, the appellant is held guilty under section 10 of the POCSO Act and he is sentenced to undergo R.I. for seven years, which is the maximum punishment for such offence. Accordingly, the JCRLA was partly allowed.
Case Title: Dilu Jojo v. State of Odisha
Coram: Mr. Justice S.K. Sahoo
Case No.: JCRLA No. 109 of 2018
Counsel for the Appellant: Mr. Malaya Kumar Swain, Advocate
Counsel for the State: Mrs. Susamarani Sahoo, Addl. Standing Counsel
Picture Source :
