Undressing Victim, Asking Her To Put Penis In Vagina Does Not Constitute Rape: Odisha HC Directs For Release Of The Accused

The Bench of Justice S.K. Sahoo held that “the appellant undressed her and made her to sleep on the stone and he slept over her and even her statement before the police which she admitted to have stated is that the appellant closed her mouth and told her to put his penis inside her mouth and further told her to put his penis into her vagina. In my humble view, none of such act of the appellant would come within the definition of ‘rape’ as defined in section 375 of the I.P.C. or ‘penetrative sexual assault’ as defined in section 3 of the POCSO Act.”

Further, while setting the accused free, the Court said “he has already undergone substantive sentence of seven years, which has been imposed on him for his conviction under section 10 of the POCSO Act. Therefore, the appellant be set at liberty forthwith, if his detention is not otherwise required in any other case.”

Advocate Malaya Kumar Swain appeared for the Appellant while Additional Standing Counsel Susamarani Sahoo appeared for the Respondent.

The Appellant was accused of raping the victim, who was under the age of 10. The victim was found in a naked state near the playground. When the victim’s parents confronted her, she revealed the acts done to her by the Appellant. Accordingly, First Information Report (FIR) was registered against the Appellant under Section 376(2)(i) IPC and Section 3 of the POCSO Act.

The Trial Court charged the accused with the above-mentioned charges and sentenced the accused to 10 years of rigorous imprisonment. The Appeal before the High Court challenged the impugned order of the Trial Court.

The High Court while examining the charges, agreed that there was no dispute as to the age of the victim. For the charges against the Appellant, the Court said “The statement of the victim in her examination-in-chief is completely silent that the appellant penetrated his penis, to any extent, into her vagina or any part of her body or made her to do the same with him. Therefore, it is very difficult to hold that the ‘rape’ as per the definition of section 375 of the I.P.C. or penetrative sexual assault as per definition under Section 3 of the POCSO Act has been committed on the victim by the appellant.”

The Court while modifying the charges of rape to sexual assault said that “in my humble view, the same would be an act of the appellant with 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.”

Since the Accused had already spent 7 years in Prison and the maximum punishment under Section 7 of the POCSO Act is 7 years, the accused was set free by the High Court.

Cause Title: Dilu Jojo v. State of Odisha

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