The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.690 of 2024 (An application U/S. 415 of Bharatiya Nagarik Suraksha Sanhita, against the order dated 29.06.2024 passed by Shri Ramanath Panda, Adhoc Addl. Sessions Judge, (Fast Track Special Court), Puri in T.R. No. 01/32 of 2023/2020 arising out of Chandanpur P.S. Case No.36 of 2020) Landa @ Nanda @ Sanjay Pradhan …. Appellant State of Orissa …. Respondent -versus- For Appellant : Mr. B.C.Ghadei, Advocate For Respondent : Mr. K.K. Gaya, ASC CORAM: JUSTICE G. SATAPATHY DATE OF HEARING : 20.08.2024 DATE OF JUDGMENT: 08.10.2024 G. Satapathy, J. 1. This appeal U/s.415 of Bharatiya Nagarik Suraksha Sanhita, 2023 (in short, “BNSS”) is directed against the judgment dated 29.06.2024 passed by the learned Adhoc Addl. Sessions Judge-Fast Track Special Court, under POCSO Act, Puri in T.R. No. 01/32 of 2023/2020 convicting the appellant for offence U/S. 10 of Protection of Children from Sexual CRLA No.690 of 2024 Page 1 of 12 Offences Act, 2012 (in short, “POCSO Act”) and sentencing him to the punishment of Rigorous Imprisonment for five years and to pay a fine of Rs.5,000/- in default whereof, to under RI for a further period of fifteen days. 2. The prosecution case in brief is that on 15.02.2020 at about 12.30 PM in the afternoon, while the victim aged about five years was playing near a half constructed Kothaghar(house) in the village, the convict allured her to show “Natia Video” in his mobile and got the child naked and inserted his finger in her vagina as well as kissed by biting her cheek. The convict further threatened the child victim with dire consequence in case she divulged the facts to others. On not finding the child-victim, her mother searched for her and saw the convict with the victim sitting on his lap by holding his penis. On seeing this, the mother of the victim, shouted, but subsequently the family members of the convict abused her in obscene language and threatened to kill her by showing weapons. CRLA No.690 of 2024 Page 2 of 12 On this incident, the mother of the victim
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lodged an FIR before the concerned IIC which came to be registered as concerned PS. Case No. 36 of 2020 paving the way for commencement of investigation which ultimately resulted in submission of charge sheet against the convict for commission of offence punishable U/Ss. 376AB/294/324/506/34 of IPC read with Sec. 6 of POCSO Act and against other five accused persons U/Ss. 352/294/506/34 of IPC, resulting in trial of the present case after denial of the convict and other co-accused persons to plead guilty to the charge for aforesaid offences. 3. In support of its case, the prosecution examined altogether 18 witnesses vide PWs 1 to 18, proved 16 documents under Ext.1 to 16 and identified one material object MOI as against no evidence whatsoever by the defence. Of the witnesses examined for the prosecution, apart from the victim and her parents, PWs. 12 & 17 are the two IOs, whereas PW18 is the Doctor who had examined the victim and rest are post-occurrence and seizure CRLA No.690 of 2024 Page 3 of 12 witnesses. The plea of the convict in the course of trial was one of complete denial and false implication. 4. After appreciating the evidence on record upon hearing the parties, the learned trial Court convicted the appellant for commission of offence U/S. 10 of POCSO Act and sentenced him to the punishment indicated in the first paragraph while acquitting the convict and other five accused persons of other charges as brought against them. In addition, the learned trial Court also awarded compensation of Rs.2,00,000/- to the victim to be made payable by the State through District Legal Services Authority. 5. In assailing the impugned judgment of
Legal Reasoning
conviction and order of sentence, Mr.B.C.Ghadei, learned counsel for the appellant has submitted that the judgment is based on surmise and conjecture since medical evidence does not support the case of the prosecution because it is the admitted evidence that the victim did not allow for medical examination of her private part which the learned trial Court has CRLA No.690 of 2024 Page 4 of 12 failed to appreciate, but the convict has been falsely framed in this case due to previous family rivalry. Further, it is submitted by Mr.Ghadei that not only PW14, the seizure witness has turned hostile, but the other private witnesses have not supported the prosecution case, however, notwithstanding to the aforesaid facts, the learned trial Court by relying upon the citation of prosecution has erroneously convicted the appellant and, therefore, the conviction of the appellant is liable to the set aside. Mr.Ghadei has alternatively submitted that even by taking into account the evidence of material witness in this case to be true, no offence U/S. 9 of POCSO Act which is punishable U/S. 10 of POCSO Act is made out, rather at best a case U/S. 7 of POCSO Act which is punishable U/S. 8 of POCSO Act can be stated to have been made out, but the minimum punishment provided for Section 8 of POCSO Act is three years and the convict having already undergone imprisonment of four years & six months, his CRLA No.690 of 2024 Page 5 of 12 sentence may kindly be directed to the period already undergone. In repelling the above submissions, Mr.K.K.Gaya, learned ASC while supporting the impugned judgment has submitted that the evidence on record clearly establishes the guilt of the convict for offence U/S. 10 of POCSO Act and thereby, the learned trial Court has not committed any illegality in convicting the appellant for said offence and the convict having sentenced to undergo minimum imprisonment prescribed for the offence, the present appeal calls for no interference. The father of the victim appearing virtually has prayed to dismiss the appeal by confirming the sentence. 6. After having considered the rival submissions upon perusal of record, since the convict challenges his conviction for offence U/S. 10 of POCSO Act, this Court considers it apposite to re- appreciate the evidence of the victim before embarking upon the evidence of other witnesses. The victim in this case is admittedly less than twelve CRLA No.690 of 2024 Page 6 of 12 years and her age has even not been disputed by the defence. Besides, the learned trial Court before recording the evidence of the victim has tested her competency by putting certain questions and after being satisfied, the learned trial Court has certified that the victim was competent to testify in the Court. The testimony of the victim transpires that two to three years before the date of her deposition as on 25.09.2023, the occurrence took place and at the time, she was in Kothaghar and the convict made her to sit on his lap and put his finger insider her undergarments and touch her vagina and she sustained pain and at this time her mother saw and thereafter, the convict left her. The victim has also stated in her evidence that she narrated the fact to her father and police brought her to Court where her statement was recorded. It is her further evidence that the police sent her to hospital for medical examination and the doctor examined her. Nothing was elicited from the mouth of the victim in her cross-examination to disbelieve her testimony. Only it CRLA No.690 of 2024 Page 7 of 12 was elicited from her mouth that her mother has instructed her to speak about the incident in the Court and she did not raise voice at the time of incident which is quite natural, since the victim was of very tender age of five years at the time of occurrence. 7. Now coming to the evidence of mother of the victim who is stated to be an eye witness to the occurrence, her testimony transpires that at the time of occurrence, she found the convict in the Kothaghar by keeping her daughter on his lap with a mobile in her hand and she noticed that the victim has caught hold of the penis of the convict who had put his hand in the panty of her daughter and seeing this, she rushed to the spot and the victim ran towards her. The testimony of the mother of the victim further transpires that she lodged the FIR and her daughter got medically examined at DHH, Puri. Although the mother of the victim was cross-examined at length, but nothing substantial was elicited form her to discredit her evidence. Further, the father of the CRLA No.690 of 2024 Page 8 of 12 victim having been told about the incident has reiterated such facts in his evidence and his evidence was never challenged by the defence except by eliciting from him that he has not seen the incident. 8. On a careful scrutiny of the above evidence of the material witnesses, it goes without saying that the prosecution has established that the convict had put his hand inside the undergarments of the victim who is found to be aged about five years which has never been disputed by the defence. No doubt, the learned counsel for the appellant assailed the conviction of the appellant for offence U/S. 10 of POCSO Act by relying upon the evidence of the doctor who has testified by saying nothing with regard to any injury on the body of the victim so also stain on her clothes. The Doctor, however, has testified in the Court that the victim did not allow examination of her private part, but the evidence of the Doctor hardly makes the accusation to be false, since she is not an witness to the occurrence. Further, her evidence is corroborative in nature and the learned trial Court CRLA No.690 of 2024 Page 9 of 12 having not found the appellant guilty of rape or penetrative sexual assault, the evidence of the Doctor would be hardly helpful to the convict to overturn the conviction of the appellant for U/S. 10 of POCSO Act. 9. On coming back to the ingredients of Sec. 9 of the POCSO Act which is punishable U/S. 10 of POCSO Act, it appears from Clause(m) of Sec.9 of the POCSO Act that whoever commits sexual assault on a child below twelve years, he would be considered to have committed aggravated sexual assault. In this case, the learned counsel for the appellant of course alternatively argued that the act of the convict would constitute an offence of simple sexual assault as contemplated U/S. 7 of POCSO, but since the victim in this case is found to be much less than twelve years, the act of the convict would constitute an offence of aggravated sexual assault. Be that as it may, even the maximum punishment for simple sexual assault is five years which the learned trial Court is competent to impose in this case, in case the alternative submission of the appellant is accepted. CRLA No.690 of 2024 Page 10 of 12 Further, Section 29 of POCSO Act provides for presumption as to certain offences and it has been mandated therein that where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 & 9 of POCSO Act, the Special Court shall presume that such person has committed the offence, unless the contrary is proved and in this case the evidence not only vindicates the conviction of the appellant for the offence, but also the presumption as available in this case has not been rebutted by the convict. 10. In view of the discussions made hereinabove and on minute scrutiny of the evidence on record and regard being had to the failure of the convict to rebut the presumption as contemplated U/S. 29 of POCSO Act, this Court has no hesitation to concur with the findings of the learned trial Court which has rightly convicted the appellant for offence U/S. 10 of POCSO Act and the convict having sentenced to minimum imprisonment as provided in Section. 10 of POCSO CRLA No.690 of 2024 Page 11 of 12 Act, the conviction and sentence of the appellant call for no interference. 11. In the result, the appeal sans merit stands dismissed on contest, but in the circumstance no order as to costs. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 8 th day of October, 2024/kishore Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Reason: Authentication Location: High Court of Orissa Date: 08-Oct-2024 13:00:39 CRLA No.690 of 2024 Page 12 of 12