Orissa High Court: In a jail criminal appeal against the judgment and order of the Special Judge, Protection of Children from Sexual Offences (‘POCSO’), wherein the accused, who is the father of the victim was found guilty of the offences under Sections 354 read with Section 354-A(2), 354-B, 376(2)(f)(i)(k)(n) of the Penal Code, 1860 (‘IPC’) as well as Sections 6 and 10 of the Protection Of Children from Sexual Offences Act, 2012 (‘POCSO Act’) and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/-, S.K. Sahoo*, J. dismissed the appeal.
An FIR was registered on 05-06-2016 wherein the victim stated that the accused embraced her and touched different parts of her body with his hands when her younger brother and mother were not at home. It was also stated that the accused undressed her and touched her private parts and also, sexually exploited her even after her repeated protest. The victim disclosed the incident to her mother and her cousin brother and his wife.
The Court below found that the victim was under sixteen years of age when the said incidents took place, it was also held that delay in lodging of the FIR in a rape case cannot be a factor to discard the prosecution evidence, particularly in view of the relationship between the accused and the victim. Therefore, the accused was found guilty of offences under Sections 354 read with Section 354-A(2), 354-B, 376(2)(f)(i)(k)(n) of the IPC as well as Sections 6 and 10 of the POCSO Act.
Regarding the age of the victim, the Court examined the School Admission Register and victim’s physical examination report and found that the Court below had rightly concluded that the victim was under sixteen years of age at the time of the occurrence. On the question of delay in lodging the FIR, the Court said that in a case of this nature where the perpetrator of the crime is none else than the father of the victim, the reputation and prestige of the family so also the future of the victim were at stake, it was not at all unnatural on the part of the family members to have deliberations among themselves before lodging the FIR. The Court also said that delay in lodging the FIR in such cases is a normal phenomenon as held by the Supreme Court so also by different High Courts in umpteen number of decisions. It was also added that delay in such cases does not necessarily indicate that the FIR was tainted, or it was deliberate or intentional to falsely implicate the accused in the commission of the crime.
The Court stated that “even after more than seven decades of independence, unfortunately the women of this country and more particularly, the minor girls have not got true freedom from the vulture like lust of perpetrators of sex crimes. However, the crimes are not end in themselves, rather those have spiraling effects on not only the psyche of victim but also on her and her family’s social repute. These factors often impede the hapless victims to come forward and report the crime”.
Hence, the Court said that the delay in lodging FIR in cases of child rape should be taken with much sensitivity and the Courts concerned must judiciously weigh all the surrounding factors which led to such delay as discarding the otherwise meritorious case of the victim merely because there was failure to knock at the portals of justice in a time-bound manner would mean nothing but adding a pinch of salt to the victim’s injury.
The Court perused the victim’s statement made under Section 164 of the Code of Criminal Procedure, 1973 (‘CrPC’) statement, wherein it was stated as to how the accused outraged her modesty and attempted to commit rape on her on different dates after disrobing her in absence of other family members. Regarding the overt act committed by the accused, the Court relied on the victim’s statement which was also corroborated with her mother’s evidence who witnessed attempt to rape on victim. Therefore, the Court said that the ingredients of the offence under Section 354, 354-A(2) and 354-B of the IPC are attracted against the accused.
The Court viewed that the ingredients of the offence under Section 376(2)(n) of the IPC which deals with punishment for commission of rape repeatedly on the same woman, would not be attracted, since the victim had stated that it was only on one occasion, the accused had inserted his finger into her private part. The Court said that Section 376(2)(f) which provides punishment for a person who being a relative, guardian or teacher of, or in a position of trust or authority towards the woman, commits rape on such woman would be attracted, since the accused being the father of the victim did not hesitate to commit such preposterous and bestial act upon his minor daughter and the victim was completely helpless as her father, who is naturally entrusted with the noble duty of caring and protecting her, could not have control over his lust and tried to quench the sexual thirst by exploiting her. Further, the Court said that this degrading act of the accused stupefies the judicial conscience of the Court as it is unthinkable to even comprehend that in a country where women are traditionally viewed as an incarnation of the God and daughters are worshipped as Devi, such heinous acts are being committed by a father. The Court also stated that “a daughter needs a father to be the standard against which she will judge all men. When the father who is the creator of the girl child and supposed to act as her protector, takes the role of the predator, it would be sheer betrayal of someone’s trust and faith and has got serious impact on humanity.” therefore, the Court said that in the matter at hand, there was no doubt that being in a position of authority and trust, the accused misused his position and sexually exploited his innocent minor daughter and raped her.
Thus, the Court viewed that there was no infirmity or illegality in the impugned judgment and the accused was rightly found guilty under Sections 354, 354-A(2), 354-B, 376(2)(f)(i)(k) of the IPC and Sections 6 and 10 of the POCSO Act. The Court acquitted the accused of offence under Section 376(2)(n) of the IPC, however, the sentence awarded by the Court below remained the same. Therefore, the criminal appeal was dismissed for being devoid of merits.
[X v. State of Odisha, 2023 SCC OnLine Ori 5409, decided on 02-08-2023]
*Judgment Authored by: Justice S.K. Sahoo
Advocates who appeared in this case :
For Appellant:- Amicus Curiae Rajib Lochan Pattnaik;
For Respondent:- Additional Standing Counsel Manoranjan Mishra.