S.27(2) POCSO Act | Accused Not Prejudiced Only Because Female Victim Was Examined By Male Doctor: Orissa High Court

The Orissa High Court has clarified that non-compliance of mandate under Section 27(2) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) does not prejudice the rights of an accused. The provision requires girl victims to be medically examined only by female doctors.

While highlighting the objective behind incorporation of the said provision, the Single Judge Bench of Justice Sangam Kumar Sahoo observed,

“The sanguine purpose is to safeguard the interest and well-being of the children at every stage of judicial proceeding. Section 27(2) of the POCSO Act has been designed to protect the girl child from embarrassment and to ensure that she is comfortable, as it was thought to be in the best interest of the girl child. It is not meant to be a safeguard in favour of the accused.”

An FIR was lodged by the father of the victim before the Model Police Station, Paralakhemundi alleging that the appellant, who was his neighbour, inserted his fingers in the vagina of her daughter, who was about seven-year-old at the time of occurrence.

The police took up the investigation and upon its completion, submitted the chargesheet against the appellant under Sections 376-AB/376(2)(n) of the Indian Penal Code read with section 6 of the POCSO Act.

The Trial Court took note of the injury noticed on the hymen of the victim and also considered the oral and documentary evidence on record to conclude that the prosecution proved its case beyond all reasonable doubts and accordingly, convicted the accused under Section 376(2)(n), IPC read with Section 6 of the POCSO Act. Being aggrieved by the aforesaid order, the accused preferred an appeal before the High Court.

For assailing the order of conviction, it was inter alia submitted for the appellant that the medical examination of victim was conducted by a male doctor despite the mandate under Section 27(2) of the POCSO Act which specifically states that in case the victim is a girl child, the medical examination shall be conducted by woman doctor.

The Court noted that the medical examination of the victim was conducted by the male doctor only after the father of the victim girl gave his consent for the same which is evident from the consent form for examination.

“There is nothing on record as to how the appellant was prejudiced due to such examination. There is no dispute that the purpose of POCSO Act is to treat the minors as a class by itself and treat them separately so that no offence is committed against them as regards sexual assault, sexual harassment and sexual abuse”, it observed.

The Court clarified that the provision is not meant to be a safeguard in favour of the accused. Therefore, in the case in hand, as the appellant was unable to show any prejudice which caused to him only because the victim was examined by a male doctor nor he challenged veracity of the report, the Court denied to accept such submission.

“…the fact remains that on the next day of the occurrence when the first information report was lodged in the police station and the victim was sent for medical examination, abrasion was noticed on her private part which strengthens the prosecution case and corroborates the evidence of the victim”, the Court observed.

Even though the victim stated that similar type of act was committed twice on her by the appellant but since there was no FIR and there was no specific evidence as to when such occurrence had taken place, the Court found it difficult to accept the version of the victim in that respect. Therefore, the conviction under Section 376(2)(n) was set aside.

The Court upheld the conviction of the appellant under Section 6 of the POCSO Act and the sentence of RI for a period of ten years. However, in view of the poor financial condition of the appellant, the fine amount of Rs. 10,000/- (rupees ten thousand) as awarded by the Trial Court was reduced to 1,000/- (rupees one thousand) and the default sentence of RI for a period of six months was reduced to RI for a period of one month.

Having regard for the Odisha Victim Compensation Scheme, 2012 [as revised by Odisha Victim Compensation (Amendment) Scheme, 2018] and keeping in view the age of the victim at the time of occurrence, the nature and gravity of the offence committed and the family background of the victim, the Court recommended the case of the victim to District Legal Services Authority for grant of compensation.

Case Title: Barika Pradhan v. State of Odisha

Case No.: JCRLA No. 20 of 2020

Date of Judgment: April 19, 2023

Counsel for the Appellant: Ms. Padmaja Pattnaik, Amicus Curiae

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

Citation: 2023 LiveLaw (Ori) 53

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