Accused Not Prejudiced Only Because Female Victim Was Examined By Male Doctor: Orissa High Court

The high court of Orissa passed a judgment on 25 April 2023, has has clarified that non-compliance of mandate under Section 27(2) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) does not prejudice the rights of an accused. The provision requires girl victims to be medically examined only by female doctors, in the case of Barika Pradhan v. State of Odisha (JCRLA No. 20 of 2020), passed by the Single Judge Bench of Justice Sangam Kumar Sahoo.

Facts of the case

The victim’s father filed a FIR at the Model Police Station in Paralakhemundi, stating that the appellant, who was also his neighbor, had placed his fingers in the victim’s daughter’s vagina, who was around seven years old at the time.  Following the end of the inquiry, the police filed a chargesheet against the appellant in accordance with sections 376-AB and 376(2)(n) of the Indian Penal Code when read in conjunction with section 6 of the POCSO Act. The Trial Court took note of the damage to the victim’s hymen and concluded that the prosecution had established its case beyond a reasonable doubt. As a result, the accused was found guilty under Section 376(2)(n) of the IPC as read with Section 6 of the POCSO Act. For example, the appellant argued that the victim’s medical examination was carried out by a male doctor despite the requirement of Section 27(2) of the POCSO Act, which states specifically that if the victim is a girl child, the medical examination shall be carried out by a woman doctor. This was one of the arguments made for challenging the order of conviction.

Courts Observation & Judgement

According to the consent form for the examination, which is clear from the court’s observation, the victim’s medical examination by the male doctor only took place after her father provided his approval. The provision is not intended to provide a protection for the accused, the Court made clear. The Court declined to accept this approach in the matter at hand since the appellant was unable to demonstrate any prejudice that was caused to him just because the victim was evaluated by a male doctor, nor did he contest the reliability of the report. Even though the victim claimed that the appellant had twice performed the same kind of crime against her, the Court found it difficult to believe her story in that regard because there was no FIR and no evidence to indicate when the incidents had occurred. The conviction under Section 376(2)(n) was thus overturned. The appellant’s conviction under Section 6 of the POCSO Act and the ten-year RI sentence were maintained by the court. However, due to the appellant’s precarious financial situation, the Trial Court lowered the default penalty of RI for a term of six months to RI for a period of one month and the fine amount from Rs. 10,000/- (rupees ten thousand) to Rs. 1,000/- (rupees one thousand). In accordance with the Odisha Victim Compensation Scheme, 2012 [as amended by the Odisha Victim Compensation (Amendment) Scheme, 2018] and taking into account the victim’s age at the time of the incident, the type and seriousness of the crime committed, and the victim’s family history, the court recommended that District Legal Services Authority grant compensation in the victim’s case.

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