Orissa High Court: Delay in Filing of FIR in Child Rape Cases Should be Dealt with Sensitivity

Authored By – Riya Singh (Intern at Legal Soch Foundation)

Meta Description: The Orissa High Court observed that the delay in filing of FIR in child rape cases needs to be dealt with sensitivity. In this particular case, the Court upheld the conviction of the appellant who is guilty of committing sexual assault on her daughter.

Keywords: POCSO Act, child rape, FIR, ossification, disrobe, sexual assault, penetrative sexual assault, penile-vaginal intercourse, outraging modesty, criminal force, rape, underreported case, sensitization, Orissa High Court

The Orissa High Courts, in a recent case of PB v. State of Odisha dismissed the Jail Criminal Appeal filed by an accused who was convicted by the Special Judge (Protection of Children from Sexual Offences Act, 2012). The learned Special Judge found the accused guilty of offences under sections 354, 354-A (2), 354-B, 376(2)(f)(i)(k)(n) of the Indian Penal Code, 1860 and sections 6 and 10 of the POCSO Act, 2012. He was awarded the rigorous punishment of 10 years and a fine of ₹10, 000.

Facts of the case - The appellant is the father of the victim. The incident took place in July 2015 in the absence of other family members, when the convict undressed the victim and touched her private parts. On the same day, at night, he inserted his fingers inside her vagina. The appellant attempted to assault and rape the victim in different instances. Due to repeated attempts made by the appellant to violate the victim’s bodily integrity, she disclosed her ordeal to her mother in February 2016.

First Information Report – There was a delay on the part of the victim and her family in filing the First Information Report (FIR). When the Court was presented with this fact, the learned Bench observed that delay in lodging the F.I.R. in cases like the present one has to be dealt with sensitivity. The Bench noted that while dealing with matters of child rape, Courts have to take into consideration other aspects influencing the decisions taken by the victim.

Unfortunately, rape cases are highly underreported in India due to the prejudices attached to them, and also the brunt of the issue is suffered by the women in their present and future. They have to go through the critical scrutiny of society, in many cases, government officials, and their path to justice is full of obstacles which sometimes, take a toll on their lives. The Bench further expressed that such delay must not be understood to be made in mala-fide intention. When the perpetrator is the father of the victim, it is understandable that it needed a lot of courage on her part to come out and disclose the truth.

Trial and Evidence – The statement of the victim and her mother was recorded under section 164 of the Code of Criminal Procedure, 1973. The mother of the victim in her statement said that she herself witnessed the appellant attempting to commit rape on her daughter. The Court also examined the School Admission Register, the report of the physical examination of the victim, and the ossification test which suggested that the victim was under the age of 16 years. The medical report clearly elucidated that there were neither any signs of injury on her body nor any recent evidence of penetrative sexual assault. With respect to this evidence, the learned Bench observed that merely having no injuries on the body doesn’t refute the fact that the victim was assaulted. It further added that evidence regarding the recent penetrative assault is not found due to a significant time gap between the incident and the medical examination.

Judgement of the High Court – The learned Bench upheld the conviction of the appellant under sections 354 (the assault on a woman to outrage her modesty); 354-A (2) which states the punishment for sexual harassment; 354-B (assault or use of criminal force on woman with an intent to disrobe her) and under sections 376(2)(f)(i)(k) which talks about punishment for a person who is in a position of trust and authority towards a woman and commits rape on her, commits rape on a woman incapable of giving consent, and rape committed by a person in a position of control and dominance over the victim, respectively. The Court found the appellant guilty of rape because the insertion of finger into vagina is sufficient to constitute rape under section 375 of the IPC, there need not be penile-vaginal intercourse to constitute an offence under this section.

The Court further upheld the convictions under 6 and 10 of the POCSO Act, 2012. It dismissed the conviction under section 376(2)(n) of the Indian Penal Code, 1860 because it provides for the punishment for a person indulging in case of repeated rape on the same woman. The learned Bench also upheld the punishment awarded to the appellant by the Special Judge.

This case is a welcome step for dealing with perpetrators who abuse their position to exploit minor girls. The judgement of Orissa High Court is commendable for being flexible and inclusive in dealing with child rape cases. It is also impressive that the victim came out of her fears to hold the person accountable for his deeds.