The Orrisa High Court upheld the conviction of the man under POCSO for sexually assaulting a 13-year old girl and stated that Gandhi’s dream that women would feel safe to walk in the streets in India at midnight is falling short of reality.
Facts of the case
The Appellant faced trial in the Court of learned Additional Sessions Judge, Balasore in Special Case No.649 of 2018 for the commission of offenses under sections 341, 376 (2)(i) of IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereafter POCSO Act). The learned Trial Court vide impugned judgment and order dated 17.02.2018 acquitting the Appellant of the charge under section 376 (2)(i) of IPC but found him guilty under section 341 of IPC and section 4 of the POCSO Act and sentenced him simple imprisonment for a month along with a fine of Rs. 500/- under Section 341 of IPC and Rigorous Imprisonment for seven years along with a fine of Rs. 5000/- under section 4 of the POCSO Act.
Learned Amicus Curiae appearing for the Appellant contended that in the F.I.R it was specifically mentioned that when P.W. 5 raised hullah, the co-villagers arrived at the scene of occurrence and on seeing them, the Appellant fled away from the spot but apart from P.W. 6 no other person was examined. It was further contended that the nature of accusation as per the evidence of the victim and her younger sister could at best make an offense of ‘sexual assault’ defined under Section 7 of the POSCO Act and there is not material record to satisfy the ingredients of the offense under Section 4 of the POCSO Act. The Amicus Curiae further submitted that though the incident took place while the victim and her sister were returning from school and the IO visited the school and seized the admission register to establish the birth date of the victim did not seize the attendance register to show whether the victim and her sister in fact attended the classes on the date of occurrence or not. It was also highlighted that the medical evidence did not corroborate the ocular evidence of the victim, hence, the benefit of the doubt should be given to the Appellant and Section 4 must be altered to Section 8 of the POSCO Act.
The Additional Standing counsel for the State placed relevance on the impugned judgment and argued that there was no infirmity or illegality in the same further stated that the evidence of the victim and her sister clearly stated that the Appellant inserted his finger into the private part of the victim and that falls within section 3(b) of the POCSO Act. The counsel further argued that the doctor had noticed some abrasions on the victim as per the report Ext.1, though no injury was noticed in the genital area. As there was ample record to show that the victim was a minor and this was a case of penetrative sexual assault, the appeal should be dismissed.
The Court looked into the register seized Ext.6 which revealed the date of birth of the victim i.e., 03.11.2003, and the occurrence took place on 24.11.2016. Therefore, the victim was thirteen years old. The Court stated that the date of birth made in the school register is relevant and admissible under section 35 of the Evidence Act and hence the victim was found to be minor at the time of commission of the offense against her. The Court further noted the evidence of the victim that she sustained injuries during the course of occurrence finds corroboration from the medical examination report Ext.1.The Court was of the opinion that though only one person was examined amongst many could not be grounds to discard the evidence of the victim and her sister and also the non-seizure of attendance register could not be a ground to disbelieve the ocular testimony of the two witnesses relating to their returning from their school at the time of occurrence.
The High Court was satisfied that the offense of wrongful restraint under section 399 of IPC was clear and found no infirmity in the conviction of the appellant under section 341 of IPC. The Court was of the opinion that though no injury was noticed over the genital area, the evidence of two witnesses appeared clear and trustworthy, and therefore, the Act of the Appellant was rightly found guilty by the Trial Court under section 4 of the POCSO Act and the punishment imposed is seven years which is the minimum punishment prescribed for such offenses. The Court stated that no illegality was found in the impugned judgment and the appellant was rightly found guilty. The Court also felt the necessity to recommend the case to District Legal Service Authority for granting compensation to the victim.
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