BHUBANESWAR: Stripping a minor girl, sleeping over her and asking her to put his reproductive organ into her genital do not amount to rape as the acts do not involve penetration, the Orissa High Court has ruled while setting aside and modifying the order of a lower court issued in 2018.
The high court ordered the accused to undergo seven years of rigorous imprisonment, the maximum punishment for such an offence. As he has been in jail since 2015 and already served the substantive jail term, the court ordered he be released if not otherwise required in any other case.
Disposing of a criminal appeal, the single judge bench of Justice SK Sahoo observed the act committed by the accused would not come within the definition of ‘rape’ as defined in section 375 of the IPC or penetrative sexual assault as per section 3 of the Protection of Children from Sexual Offences (POCSO) Act. He can be said to have committed ‘aggravated sexual assault’, which is punishable under section 10 of the Act.
On August 21, 2018, the additional sessions judge-cum-special judge of Sundargarh had sentenced one Dilu Jojo to 10 years rigorous imprisonment and imposed penalty of `5,000 under section 376(2)(i) of IPC and section 6 of the POCSO Act, 2012 for allegedly raping a minor girl of Tensa area.
As per the prosecution, the seven-year-old girl had gone out to play in the afternoon of May 9, 2015 and when she did not return home till midnight, her mother searched for her. She found the girl naked at Jhumpudi playground. The girl disclosed the accused had raped her. The accused was arrested following an FIR lodged at Lahunipada police station. The accused had challenged the judgement of the lower court.
While modifying the order of the trial court, the high court in its June 28 judgement took into consideration the claims of the victim that the accused undressed her, made her sleep on a stone, slept over her, closed her mouth and told her to put his private part inside her mouth and further told her to put his private part into her genital. The court held the acts would not come within the definition of ‘rape’ as defined under section 375 of the IPC or ‘penetrative sexual assault’ as defined in section 3 of the POCSO Act.
“The statement of the victim is completely silent that the accused penetrated his private part, to any extent, into her genital or any part of her body or made her to do the same with him. She is also silent on insertion of any object or a part of his body to any extent, not being the private part, into her genital or any other part of her body. Her evidence is also silent that the accused manipulated any part of her body so as to cause penetration into her genital or any part of her body or made her do so with him. Her evidence is also silent that the accused applied his mouth to her genital or other private parts or made her apply her mouth to his private parts. Therefore, it is very difficult to hold that the ‘rape’ has been committed on the victim by the accused,” Justice Sahoo observed.
However, referring to section 9 (aggravated sexual assault) of the POCSO Act, the court said the conduct of the accused is an act with sexual intent. “It would be an act of sexual intent, which involved physical contact with the victim without penetration and therefore, it would come within the definition of sexual assault as defined under section 7 of the POCSO Act and since the age of the victim has been proved to be below twelve years, the accused committed aggravated sexual assault with the victim,” the order stated.