Undressing & Sleeping Over Minor Victim, Asking To Penetrate Her Private Part Amounts To ‘Sexual Assault’, Not Rape: Orissa High Court

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 male organ of the accused does not amount to rape.

However, the Single Judge Bench of Justice Sangam Kumar Sahoo was of the opinion that such 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’).

While modifying the order of conviction against the accused-appellant, the Bench noted,

“The evidence of the victim (P.W.1) in her examination-in-chief is that the appellant undressed her and made her to sleep on the stone and he slept over her and even her statement before the police which she admitted to have stated is that the appellant closed her mouth and told her to put his penis inside her mouth and further told her to put his penis into her vagina. In my humble view, none of such act of the appellant would come within the definition of ‘rape’ as defined in section 375 of the I.P.C. or ‘penetrative sexual assault’ as defined in section 3 of the POCSO Act.”

The Prosecution Case

The victim was five years of age at the time of occurrence. One day after going to play in the afternoon, she did not return home. Her mother searched for her, but could not locate her. At about midnight, she found the victim in a naked condition and on being asked, the victim disclosed that the appellant committed rape on her.

Accordingly, an FIR dated 09.05.2015 was registered under Section 376(2)(i) of the IPC and Section 6 of the POCSO Act. After registration of the case, the school admission-register of the victim, where the victim was pursuing her study, was seized which revealed that the date of birth of the victim was 24.03.2008.

On completion of investigation, the charge-sheet was filed against the appellant under Section 376(2)(i) of the IPC and Section 6 of the POCSO Act. The Trial Court found the accused guilty of the aforesaid charges and sentenced him accordingly. Being aggrieved by the order of conviction, the appellant preferred this appeal before the High Court.

Court’s Observations

The Court highlighted that the victim admitted to have stated before the police that the appellant closed her mouth and told her to put his penis inside her mouth and further asked her to insert his penis into her vagina.

The Court also stressed on the evidence of the mother of the victim who stated that at about 12 midnight, the victim returned home and on being asked, she revealed that the appellant undressed her and told her to suck his penis and when she shouted, the appellant closed her mouth. She also disclosed that the appellant was also touching his penis on her vagina. When she shouted and cried, the appellant left her.

The Court, however, underlined that 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. She is also silent on insertion of 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 Court added.

However, referring to Sections 9 (aggravated sexual assault) and 10 (punishment for aggravated sexual assault) of the POCSO Act, the Court was of the view that the conduct of the appellant in undressing the victim and making her to sleep on a stone and sleeping over her, is an act of the appellant with sexual intent.

“…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),” the Court added.

Accordingly, the order of conviction passed by the Trial Court was modified and the appellant was held guilty for ‘aggravated sexual assault’, instead of rape and aggravated penetrative sexual assault.

He was sentenced to undergo seven years of rigorous imprisonment, which is the highest punishment for commission of such offence. However, as he has been in jail from 2015 and has already served the substantive jail term, he was ordered to be released forthwith.

Case Title: Dilu Jojo v. State of Odisha

Case No.: JCRLA No. 109 of 2018

Date of Judgment: June 28, 2023

Counsel for the Appellant: Mr. Malaya Kumar Swain, Advocate

Counsel for the State: Mrs. Susamarani Sahoo, Addl. Standing Counsel

Citation: 2023 LiveLaw (Ori) 74

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