Orissa High Court: In a criminal appeal filed against the Judgment of the Additional Sessions Judge , wherein the convict/appellant was sentenced to rigorous imprisonment for ten years for the offences under Section 376(2)(i) of the Penal Code, 1860 and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), the Single Judge Bench of S.K. Sahoo* J., set aside the impugned Judgment and found the convict guilty under Section 10 of the POCSO Act.
Background
In the matter at hand, the minor girl’s mother filed a First Information Report (‘FIR’) against the convict under Section 376(2)(i) of the IPC and Section 6 of the POCSO Act, alleging that the convict had committed rape on her daughter on 08-05-2015 between 5 p.m. to 12 a.m., when the girl was five years of age and had gone to play in the playground with her elder sister and friend, while her parents went to collect firewood. The mother of the minor girl had found her in a naked condition. The Additional Sessions Judge in the impugned Judgment had held that the survivor was a minor girl, and she was below twelve years of age at the time of occurrence and the convict had committed sexual assault on her. Therefore, the Court vide order dated 21-08-2018 had found the convict guilty of both the charges and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5,000/-.
Court’s Analysis
Regarding the age of the minor girl, on the basis of the evidence and the entry made in the minor girl’s school admission register, the Court viewed that the minor girl was below the age of twelve years of age at the time of occurrence i.e., 08-05-2015. Regarding the evidence and statement of the minor girl, the Court noted that the Trial Court had concluded that the minor girl was competent to give evidence and accordingly her statement was recorded. The Court also perused Section 118 of the Evidence Act, 1872 which states ‘that a child is a competent witness provided that he understands the questions put to him and is in a position to give rational answers to such questions.’ Further, the Court perused the examination-in-chief of the minor girl, wherein she had stated that in the evening when she was playing in her home with her sister and friend, the convict took her to the nearby bushes of the village where he undressed her and made her sleep on a stone and then he slept over her and then the convict gave her to eat and dragged her hand and told her to return home. The said statement of the minor girl was also corroborated with the statement made by her parents.
The Court also viewed that non-examination of any witnesses cannot be a ground to disbelieve the evidence of the minor girl. As per the Court, no particular number of witnesses is required for proving a certain fact, it is the quality and not the quantity of the witnesses that matters. Evidence is weighed and not counted. Evidence of a victim of rape, if found to be truthful, consistent, and inspires confidence, the same is sufficient for maintaining conviction. It is not necessary that all those persons who had seen a part of the occurrence must be examined by the prosecution to prove the guilt of the accused person. Thus, the Court said that even if some persons present in the vicinity are not examined, the evidence of the minor girl could not be discarded.
Regarding the question that whether the ingredients of the offence were made out, the Court perused Section 376(2)(i) of the IPC and Section 6 of the POCSO Act and viewed that on the basis of the evidence of the minor girl the convict had made her sleep on the stone and he slept over her and closed her mouth and told her to put his penis inside her mouth and further told her to put his penis into her vagina, none of the said acts of the convict would come within the definition of ‘rape’ as defined in Section 375 of the IPC or ‘penetrative sexual assault’ as defined in Section 3 of the POCSO Act. Further, the Court explained that the statement of the minor girl in was completely silent that the convict had 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 that the convict 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. There was no evidence as to that the convict 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 was also silent that the convict applied his mouth to her vagina or anus, urethra or made her to apply her mouth to his penis. Therefore, the Court said that it was very difficult to hold that the ‘rape’ as per the definition of section 375 of the IPC or penetrative sexual assault as per definition under Section 3 of the POCSO Act was committed on the minor girl by the convict.
The Court perused Section 8 and Section 9 of the POCSO Act which defines ‘sexual assault’ and ‘aggravated sexual assault’ respectively. Aggravated sexual assault is punishable under section 10 of the POCSO Act. The Court said that as per Section 9 of the POCSO Act, if anyone commits sexual assault on a child below twelve years of age, he can be said to have committed ‘aggravated sexual assault’. Therefore, the Court viewed that the conduct of the convict in undressing the minor girl and making her sleep on a stone and then sleeping over her, and said that the same would be an considered an act with sexual intent, which involved physical contact with the minor girl 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 minor girl was proved to be below twelve years the convict had committed ‘aggravated sexual assault’ with the minor girl.
Therefore, the Court set aside the impugned Judgment of the Trial Court Judgment and said that the order of conviction of the convict under section 376(2)(i) of the IPC and section 6 of the POCSO Act was not sustainable in the eyes of law and held him guilty under Section 10 of the POCSO Act. The convict was sentenced to undergo Rigorous imprisonment for seven years, which is the maximum punishment for such offence and based on the financial condition of the convict no fine was imposed on him. The Court also noted that the convict was taken into the judicial custody on 20-05-2015 and that he was never released on bail during trial of the case and even during pendency of the appeal before the Court, therefore, the Court said that the convict had already undergone substantive sentence of seven years, which has been imposed on him for his conviction under Section 10 of the POCSO Act, thus, the Court ordered to set the convict at liberty, if his detention was not otherwise required in any other case.
[Dilu Jojo v. State of Odisha, 2023 SCC OnLine Ori 4474, Decided on 28-06-2023]
Judgment Authored by: Justice S.K. Sahoo
Advocates who appeared in this case :
Advocate from petitioner: Advocate Malaya Kumar Swain;
Advocate from respondent: Additional Standing Counsel Susamarani Sahoo.
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