The Orissa High Court has recently upheld the conviction and sentence imposed on a man for raping and sexually assaulting his minor daughter. While terming the offence to be ‘bestial’ and ‘sheer betrayal of trust and faith’ of the little daughter, the Single Bench of Justice Sangam Kumar Sahoo observed,

“In this context, it is worthwhile to quote the Sanskrit shloka, “यत्र नार्यस्तु पूज्यन्ते रमन्ते तत्र देवता” which means that the Almighty God resides where women are worshipped. Where women are honoured, divinity blossoms there. It highlights the importance of how women should be treated with dignity and respect. There is no doubt that being in a position of authority and trust, the appellant misused his position and sexually exploited his innocent minor daughter and raped her. Thus, the ingredients under section 376(2)(f) are made out in this case.”

It was prosecution's case that on a day in July 2015, while no one else was present in the house, the appellant (father of the victim) embraced the victim and touched different parts of her body including her breasts and private parts. Being petrified by such conduct of her father, she started crying loudly and he left her. But his degrading act did not see a closure as in that very night itself he slept near the victim, undressed her and inserted his finger into her vagina, for which she cried.

Such things were done repeatedly and the appellant used to sexually exploit her in spite of her protest. However, the little daughter could not say anything in view of their relationship, Court noted.

When the situation became unbearable, the victim disclosed the unfortunate incidents before her mother during February 2016, for which there was a quarrel between her parents. Later, her mother advised her to report the matter to the police and an FIR was lodged accordingly.

After completion of the investigation, the chargesheet was filed and trial was conducted. The trial Court found the appellant guilty under Sections 354/354A(2)/354B/376(2)(f)(i)(k)(n) of the IPC as well as Sections 6 and 10 of the POCSO Act. Thereafter, the appellant preferred a jail criminal appeal against such order before the High Court.

Court’s Observations

After giving due consideration to the school admission register and the evidence of the doctor who conducted ossification test of the victim, the Court was of the view that both the evidences suggest that the victim was under sixteen years old.

It was pointed out that the doctor, who examined the victim, found no injury on her person and also no sign or symptom of recent penetrative sexual assault could be traced.

However, the Court refuted such contention by observing that the time gap between the incident and the medical examination in such cases is crucial and therefore, mere absence of injury cannot be a factor for which the Court can discard the testimony of the victim altogether.

The Court examined the testimony of the victim as well as other witnesses. It was of the firm opinion that her testimony, being corroborated by the evidence of her mother, was trustworthy and clinching.

Though no evidence could be adduced to prove penile-vaginal intercourse, but the Court said that insertion of finger into the vagina of the victim is sufficient to constitute rape under Section 375 of the IPC.

The Court further noted that Section 376(2)(f) of the IPC 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.

In the instant case, it held, the appellant being the father did not hesitate to commit such preposterous and bestial act upon her minor daughter. 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 his sexual thirst by exploiting her.

“This degrading act of the appellant stupefies the judicial conscience of this 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. 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,” the Court added.

Additionally, the Court also held that the appellant has committed the offence under Section 376(2)(i) as he committed rape on the victim when she was under sixteen years of age. Also, he was found guilty under Section 376(2)(k) as the appellant being in a position of control and dominance over the victim committed rape on her.

Similarly, his conviction under Section 6 and 10 of the POCSO Act was upheld. The Court also declined to reduce the term of imprisonment as handed down to him by the trial Court. Accordingly, the Jail Criminal Appeal was dismissed.

Case Title: TB v. State of Odisha

Case No.: JCRLA No. 75 of 2019

Date of Judgment: August 2, 2023

Counsel for the Appellant: Mr. Rajib Lochan Pattnaik, Amicus Curiae

Counsel for the State: Mr. Manoranjan Mishra, Addl. Standing Counsel

Citation: 2023 LiveLaw (Ori) 85

Click Here To Read/Download Order