Published on: 13 July 2023 at 13:30 IST
The Odisha High Court, while addressing a case under the POCSO Act, ruled that the charges of rape were unsustainable and overturned the Trial Court’s decision. The court held that undressing the victim and asking her to engage in sexual acts did not constitute rape. Justice S.K. Sahoo, on the bench, stated that the actions of the accused did not fit the legal definition of rape as outlined in Section 375 of the Indian Penal Code or penetrative sexual assault under Section 3 of the POCSO Act. The accused had already served a seven-year sentence, and the court ordered his immediate release unless detained in another case. Advocate Malaya Kumar Swain represented the appellant, while Additional Standing Counsel Susamarani Sahod appeared for the respondent.
In the case, the appellant was accused of raping a victim who was under the age of 10. The victim was found naked near a playground, and upon questioning by her parents, she disclosed the acts committed by the appellant. A First Information Report (FIR) was filed against the appellant under Section 376(2)(i) of the IPC and Section 3 of the POCSO Act. The Trial Court charged the accused accordingly and sentenced him to ten years of rigorous imprisonment. The appeal to the High Court challenged the Trial Court’s order.
Upon examination of the charges, the High Court acknowledged that there was no dispute regarding the victim’s age. However, the court noted that the victim’s statement during her examination-in-chief did not mention any penetration by the appellant into her vagina or any part of her body, nor did it indicate that she was compelled to engage in such acts. Consequently, the court found it difficult to establish that rape, as defined in Section 375 of the IPC or penetrative sexual assault under Section 3 of the POCSO Act, had been committed. The court modified the charges to sexual assault, deeming the appellant’s actions as acts with sexual intent involving physical contact without penetration, falling within the definition of sexual assault as defined in Section 7 of the POCSO Act.