Gandhi's Dream That Women Feel Safe To Walk At Midnight Is Falling Short Of Reality: Orissa HC Upholds Man's Conviction Under POCSO

The Bench of Justice S. K. Sahoo specifically observed thus:

"The father of nation Mohandas Karamchand Gandhi, who led Indian independence movement with great sons of soil like Jawaharlal Nehru, Sardar Vallabhbhai Patel, Bhagat Singh, Chandra Sekhar Azad, Subhas Chandra Bose and many more had once said, 'India will be free when the women feel safe to walk in the streets of India in the midnight'.

"In spite of socio-economic development all corners, Bapuji‟s dreams is still falling short of reality because the human race, which he loved so much, could not rise to the standard he set," the court added.

Trial court's Judgment

Finding the evidence of the victim as clear and cogent regarding sexual assault meted out to her by the appellant, the trial Court came to hold that the appellant/accused act of inserting finger in victim girls' private would come under the definition of 'penetrative sexual assault' as per section 3(b) of the POCSO Act.

Accordingly, the appellant was held guilty under section 341 of the Indian Penal Code and section 4 of the POCSO Act (which prescribes punishment for penetrative sexual assault), however, the Court also held that the prosecution had failed to establish the charge under section 376(2)(i) of the Indian Penal Code.

Court's observations

Noting the facts of the case, the Court at the outset, remarked thus:

"The case at hand depicts the bitter experience of an innocent teen aged helpless victim girl while returning from school in the broad day light on the public road, when the vulture like appellant committed the ghastliest crime known under the sky on her in presence of her minor sister."

The Court noted that there were no doubts about the fact that when the 13-year-old gril/victim and her sister were returning home on their bicycle, the appellant had come to their front and had caught hold of the handle of the bicycle for which they fell down on the ground.

Relying upon the school admission register, the Court held that when the occurrence took place on November 2016, the victim had just completed thirteen years of age.

Further, the Court noted that this fact was also established that the appellant/accused had inserted his finger into the private part of the victim.

"Even though the doctor (P.W.1) has not noticed any injury over the genital area of the victim and found her hymen intact, in my humble opinion, the same cannot be a factor to disbelieve the evidence of the two witnesses which appear to be clear, cogent and trustworthy," the Court further added.

To reach to this conclusion, the court relied upon the conduct of the victim in making a disclosure about the occurrence before her aunt and held it to be admissible as res gestae under section 6 of the Evidence Act.

The Court also took into account the evidence of the star witnesses of the prosecution i.e. the victim herself and her sister and noted that the same was getting corroboration from the evidence of an eye witness as well as the inspector in charge.

"The medical evidence also indicates about the presence of the injuries on the person of the victim when she was examined on the next day of the occurrence," added the Court.

Against this backdrop, regarding Section 341 of the Indian Penal Code (which prescribes punishment for 'wrongful restraint', the Court came to the following conclusion:

"Therefore, the act of the appellant in coming in front of the victim and her sister and catching hold of the handle of the bi-cycle to stop their movement which led them to fall on the ground, in my humble view, clearly makes out the ingredients of the offence (defined under section 339) and therefore, I find no infirmity in the conviction of the appellant under section 341 of the Indian Penal Code."

Further, regarding appellant/accused conviction under Section 4 of POCSO Act, the Court observed thus:

"Therefore, the act of the appellant comes within the same and as such he has been rightly found guilty by the learned trial Court under section 4 of the POCSO Act. The punishment which has been imposed on the appellant for the offence under section 4 of the POCSO Act is seven years which is the minimum punishment prescribed for such offence."

Accordingly, the Court didn't find any illegality in the impugned judgment and order of conviction passed by the trial Court and the appellant conviction under section 341 of the Indian Penal Code and section 4 of the POCSO Act was upheld

Importantly, keeping in view the age of the victim at the time of occurrence and the nature and gravity of the offence committed and the family background, the Court recommended the case of the victim to District Legal Services Authority, Balasore to examine the case of the victim after conducting the necessary enquiry in accordance with law for grant of compensation under Odisha Victim Compensation Scheme, 2012