While analyzing the contention that the medical examination was not done by a female doctor as should have been under Section 27(2) of the POCSO Act, the Orissa High Court noted the purpose of the said provision, which is 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 was also noted that this provision cannot be used in favor of the accused. The accused should have shown that there was any prejudice caused to him because of a male doctor examining the victim to make his submission important.
Brief Facts:
The appellant, Barika Pradhan has faced trial in the court of learned additional sessions judge cum special judge for the commission of offenses punishable under section 376(2)(n) IPC and Section 9 of POCSO, 2012. The appellant had called the victim who was a minor of about 7 years old and committed aggravated penetrative sexual assault on her, he was found guilty and was sentenced to a period of 10 years with a fine of Rs. 10,000/-. During the course of the trial, after analyzing all the evidence, the trial court noted that the victim was 7 years old at the time of occurrence and her evidence was found to be reliable as well as trustworthy. And it was further held that the injury on the victim’s hymen prove the act of rape and accordingly, the learned trial court held that the prosecution’s case was proved beyond guilty and the accused was convicted.
Contentions of the Appellant:
The learned counsel for the appellant has contended that the appellant’s conviction under section 376(2)(n), cannot be sustained in the eye of the law as there is no clinching material on record that rape was committed. Further, it has been submitted that the statement of the mother of the victim has been relied upon, where she stated that the appellant committed sexual intercourse with the victim, but after the examination by the doctor, it was found that there was no erection of the penis, after several attempts. And accordingly, the commission of sexual intercourse by the appellant to the victim as stated by the mother cannot be accepted. It has also been argued that there is no evidence on record to show that such incidents had occurred before as well. Therefore, the commission of similar acts prior to the date of occurrence cannot be proved and the commission of repeated rape on the victim is an ingredient under section 376(2)(n) of IPC. The next contention raised is that the medical examination of the victim was conducted by a male doctor even when Section 27(2) of the POCSO Act states that the medical examination in the case of a girl victim should be conducted by a woman doctor. The next contention is that it has been noted by the court below that there was an abrasion over the hymen of the victim, but nothing has shown that such abrasion can be caused by fingering, instead, the doctor in the cross-examination has stated that such injury is possible by scratch. It was then concluded that the prosecution has not successfully proved the charges against the appellant and this is a fit case where the benefit of the doubt should be extended in favor of the appellant.
The Contentions of the Respondent:
The opposite counsel has supported the trial court’s judgment and has contended that the victim’s evidence is getting support from her parents and the conduct of the victim to disclose the occurrence immediately before her mother is admissible as res gestae admissible under section 6 of the Evidence Act. Further, it was also submitted that there was no earthly reason for the victim to falsely implicate the appellant in a case of this nature. It was also argued that since the minimum punishment prescribed for the offenses has been awarded by the learned trial Court, no interference with the same is called for and thus the appeal should be dismissed.
Observations of the Court:
The Hon’ble Court first noted the analysis of the trial court about the age of the victim as under section 118 of the evidence act, a child witness is a competent witness if he/she is able to understand the questions out to him/her and give rational answers to such questions and in view of the evidence the court was of the view that the victim was aged about seven years at the time of occurrence.
The court then analyzed the victim’s evidence because as a child witness, she is a pliable witness and can be tutored easily. After the analysis, the court was of the view that the victim’s evidence remained unshaken and there were no contradictions or discrepancies in her statement and which inspires confidence, accordingly the court was satisfied with regard to the truthfulness of her statement, and no hesitation was found in relying upon her evidence. And further because the evidence of the victim gets corroboration from that of her parents, it becomes even stronger.
Then the court went ahead to analyze the evidence of the doctor and the contention of the appellant that the medical examination of the victim girl was done by a male doctor which is not in accordance with Section 27(2) of the POCSO Act was also talked about. It was then noted that the medical examination of the victim was done with the consent of the victim’s father. Further, the court noted that the purpose of section 27(2) of the POCSO Act is 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 favor of the accused. Further, since the appellant side has not been able to show any prejudice caused to the appellant because the victim was examined by a male doctor, no importance was attached to such submission.
The court then analyzed the contention as to whether a similar act was committed previously and it was concluded that the prosecution has failed in establishing the charge under section 376(2)(n), however given the scenario it was noted that the prosecution had established a case under Section 376-AB of the IPC.
The Decision of the Court:
The conviction of the appellant under section 6 of the POCSO Act was upheld and the District Legal Services Authority was directed to assess the grant of compensation to the victim under the Odisha Victim Compensation Scheme.
Case Title: Barika Pradhan v. State of Odisha
Coram: Justice S.K. Sahoo
Case No.: JCRLA No.20 Of 2020
Advocates for the Appellant: Mrs. Padmaja Pattnaik Amicus Curiae
Advocate for the Respondents: Mrs. Susamarani Sahoo Addl. Standing Advocate
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