Orissa High Court
Bipin Bhoi vs State Of Odisha on 22 July, 2021
Equivalent citations: AIRONLINE 2021 ORI 217
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No. 103 OF 2018
From judgment and order dated 30.08.2018 passed by the Addl.
Sessions Judge -cum- Judge, Special Court (POCSO), Dhenkanal
in C.T. (Spl.) POCSO Case No.11 of 2015.
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Bipin Bhoi ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Mr. Niranjan Singh (1)
For Respondent: - Mr. Anupam Rath
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Judgment: 22.07.2021
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S.K. SAHOO, J. The appellant Bipin Bhoi faced trial in the Court of
learned Addl. Sessions Judge -cum- Judge, Special Court
(POCSO), Dhenkanal in C.T. (Spl.) POCSO Case No.11 of 2015
for commission of offences punishable under sections 376(2)(i)
and 506 (Part-I) of the Indian Penal Code and section 6 of the
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Protection of Children from Sexual Offences Act, 2012 (hereafter
'POCSO Act').
The learned trial Court vide impugned judgment and
order dated 30.08.2018 found the appellant guilty of the
offences charged and sentenced him to undergo rigorous
imprisonment for ten years and to pay a fine of Rs.25,000/-
(rupees twenty five thousand), in default, to undergo further
imprisonment for six months under section 6 of the POCSO Act
and rigorous imprisonment for one year for the offence under
section 506 (Part-I) of the Indian Penal Code and both the
sentences were directed to run concurrently. No separate
sentence was awarded for the offence under section 376(2)(i) of
the Indian Penal Code in view of the provision under section 42
of the POCSO Act
2. The prosecution case, in short, is that on 05.04.2015
at about 10.00 a.m., the victim (P.W.1), who is a minor girl aged
about twelve years had been to take bath to the nearby village
tank and at that time, the appellant came there and lifted her to
the Amari bush and there he made her lie down on the ground,
removed her panti and committed rape on her. While leaving the
place of occurrence, the appellant threatened the victim to kill
her, if she would disclose the matter before anybody. While the
victim was returning back home from the spot, the appellant was
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following her, but seeing the mother (P.W.2) of the victim, he
fled away. The victim narrated about the occurrence before her
mother.
P.W.2 disclosed the matter before her husband after
he returned from his work and then they went to Tumusinga
police station on the same day and at about 9.00 p.m., P.W.2
lodged the written report which was scribed by one Subas of
village Pandua as per her instruction who read over and
explained the report to P.W.2 and after she found it to be
correct, she signed on the report.
P.W.15 Satyanarayan Pradhan, who was the Officer
in-Charge of Tumusinga police station, on receipt of the written
report from P.W.2, registered the same as F.I.R. (Ext.2) in
Tumusingha P.S. Case No.29 dated 05.04.2015 under sections
376(2)(i) of the Indian Penal Code and 4 of the POCSO Act
against the appellant. He took up investigation of the case and
during course of investigation, he examined the informant
(P.W.2), the victim (P.W.1) and recorded their statements. He
proceeded to the village of the informant and examined other
witnesses. He also proceeded to the spot but due to darkness at
the spot, he returned back. On the next day of occurrence i.e. on
06.04.2015, the Investigating Officer seized the wearing
apparels of the victim i.e. one blue, white and red mix colour
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nylon frock and one faded black colour panti as per seizure list
vide Ext.4. He arrived at the spot on the next day and verified
the same and prepared the spot map vide Ext.10. The victim was
sent to S.D. Headquarters Hospital, Kamakhyanagar for medical
examination and the vaginal swab of the victim was collected by
the doctor and it was seized by the I.O. The statement of the
victim under section 164 Cr.P.C. was recorded by the Magistrate
on 07.04.2015. The appellant was arrested on 09.04.2015 and
he was also sent for medical examination to S.D. Headquarters
Hospital, Kamakhyanagar. The nail clippings, loose plucked hair,
semen and wearing apparels of the appellant were seized as per
the seizure list vide Ext.8 and the appellant was forwarded to
Court on 10.04.2015. The Investigating Officer visited the school
where the victim was prosecuting her studies and seized the
school admission register from the headmaster as per seizure list
vide Ext.5, which reflected that the date of birth of the victim to
be 12.05.2004. The school admission register was handed over
to the headmaster of the school on executing zimanama vide
Ext.6. The headmaster of the school also furnished a certificate
basing on the school admission register that the date of birth of
the victim was 12.05.2004. The Investigating Officer obtained
the medical examination report of the victim as well as the
appellant and then he sent the material objects to the Director,
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State Forensic Science Laboratory, Rasulgarh, Bhubaneswar for
chemical examination through Court and on 25.05.2015, on
completion of investigation, charge sheet was submitted against
the appellant under sections 294/506/342/376(2)(i) of the
Indian Penal Code read with section 6 of the POCSO Act.
3. After submission of charge sheet and commitment of
the case to the Court of Session, the learned trial Court on
31.03.2016 framed the charges against the appellant as already
stated and since the appellant refuted the charges, pleaded not
guilty and claimed to be tried, the sessions trial procedure was
resorted to prosecute him and establish his guilt.
4. The defence plea of the appellant is one of denial and
it is pleaded that he had been falsely implicated in the case.
5. During course of trial, in order to prove its case, the
prosecution has examined as many as fifteen witnesses.
P.W.1 is the victim who proved her signature in her
164 Cr.P.C. statement. She supported the prosecution case and
stated about the commission of rape on her by the appellant.
P.W.2 Basanti Bhoi is the mother of the victim, who
is the informant in the case and she stated that the appellant
fled away on noticing her and the victim narrated about the
occurrence before her.
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P.W.3 Sarojini Bhoi stated about the disclosure made
by P.W.2 about the occurrence before her. She suggested to
P.W.2 to disclose about the occurrence before the mother of the
appellant.
P.W.4 Bhagabat Bhoi is the father of the victim
(P.W.1) and husband of the informant (P.W.2), who stated that
the P.W.1 and P.W.2 disclosed the occurrence before him.
P.W.5 Kasinath Patra, who is a co-villager of the
informant, is a witness to the seizure of wearing apparels of the
victim vide seizure list Ext.4.
P.W.6 Subhranshu Kumar Mohanta is the scribe of
the F.I.R. (Ext.2).
P.W.7 Bikram Kumar Behera, who was the
Headmaster in-charge of Udayagiri Primary School is a witness
to the seizure of school admission register vide seizure list Ext.5
and he took zima of that register vide zimanama (Ext.6).
P.W.8 Sua Bhoi is a co-villager, who stated to have
heard about the occurrence.
P.W.9 Dibakar Bhoi, who was working as a teacher at
Udayagiri Primary School, is a witness to the seizure vide seizure
list Ext.5.
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P.W.10 Hemant Kumar Bhutia, who was working as
Constable at Tumusingha Police Station, is a witness to the
seizure vide seizure list Ext.7.
P.W.11 Prasanna Kumar Dehury, who was working
as Constable in Tumusingha Police Station, is a witness to the
seizure vide seizure list Ext.8.
P.W.12 Padmabati Bhoi, who is a neighbour of P.W.2,
did not support the prosecution case.
P.W.13 Sudhanshu Sekhar Mishra, who was the
Gynic Specialist at Sub-divisional Headquarters Hospital at
Kamakhyanagar examined the victim (P.W.1) on police
requisition and proved the medical examination report vide
Ext.3/1.
P.W.14 Dr. Dillip Ku. Kar, who was the Pediatric
Specialist at Sub-divisional Headquarters Hospital at
Kamakhyanagar, medically examined the appellant on police
requisition and noticed some injuries on the person of the
appellant and proved the medical examination report vide Ext.9.
P.W.15 Satyanarayan Pradhan was the Officer in-
charge of Tumusingha Police Station and he is the Investigating
Officer of the case.
The prosecution exhibited eleven numbers of
documents. Ext.1 is the 164 Cr.P.C. statement of the victim,
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Ext.2 is the F.I.R., Ext. 3/1 is the medical examination report of
the victim, Ext.4 is the seizure list of the wearing apparels of the
victim, Ext.5 is the seizure list, Ext.6 is the zimanama, Ext.7 is
the seizure list dated 06.04.2015, Ext. 8 is the seizure list dated
09.04.2015, Ext.9 is the medical examination report of the
appellant, Ext.10 is the spot map and Ext.11 is the certificate
regarding the date of birth of the victim.
No witness was examined on behalf of the defence.
6. The learned trial Court on analyzing the oral as well
as documentary evidence on record, has been pleased to hold
that the final opinion of the doctor that there was no penetration
or attempt to penetration of penis of the appellant into vagina of
the victim is not acceptable. The findings of the doctor that
bodily injuries on the victim are not suggestive of forceful sexual
intercourse are also not acceptable. It is further held that a clear,
cogent and trustworthy evidence of the victim and other
witnesses cannot be brushed aside basing on the opinion of the
doctor which are contrary to his own finding that he noticed
injuries on genitals of the victim. The learned trial Court further
held that the appellant had sustained injuries on the left elbow
and the back of the abdomen and the age of the injuries tallies
with the date of occurrence. It was further held that the evidence
of P.W.1, P.W.2 and P.W.4 are sufficiently corroborated by the
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evidence of P.W.3 and P.W.8 so also to some extent from the
evidence of P.W.12 and therefore, such evidence cannot be
simply ignored merely because the doctor submitted a report
contrary to his own finding on injury he noticed on the genitals of
the victim. Learned trial Court further held the victim to be under
twelve years of age at the time of occurrence and that
prosecution has successfully established the charges under
sections 376(2)(i) and 506 (Part-I) of the Indian Penal Code and
section 6 of the POCSO Act against the appellant.
7. Mr. Niranjan Singh (1), learned counsel appearing for
the appellant strenuously contended that the learned trial Court
has not appreciated the evidence on record in its proper
perspective and the evidence of the victim indicates that she was
tutored by her mother to depose against the appellant in Court.
It is further argued that the statement of the victim that the
appellant was following her after the occurrence and seeing her
mother, he fled away is contradictory to her statement recorded
under section 164 of Cr.P.C., in which she stated that after the
occurrence, the appellant left the spot giving her threat. It is
further argued that since the doctor has stated on examining the
victim that the inflammation, redness and tenderness noticed on
the labia minora of the victim are possible due to infection and
the labia majora was also normal, it rules out the penetration
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into the vagina of the victim as has been stated in her evidence.
It is further argued that the chemical examination report
indicates that no blood and semen stains could be noticed on the
frock and panti of the victim and also in her vaginal swab which
also negatives the prosecution case of rape and therefore, it is a
fit case where benefit of doubt should be extended in favour of
the appellant.
Mr. Anupam Rath, learned Additional Standing
Counsel for the State, on the other hand, supported the
impugned judgment and contended that by way of oral as well
as documentary evidence, it has been clearly proved that the
victim was of twelve years of age at the time of occurrence. The
evidence of the victim is very clear, cogent, trustworthy and
nothing has been elicited in her cross-examination to disbelieve
her evidence. He further submitted that immediately after the
occurrence, the victim disclosed about the occurrence before her
mother (P.W.2), which is admissible as per the provision under
section 6 of the Evidence Act and there was no earthly reason for
the victim and her family members to implicate the appellant
falsely in the charge of rape having far reaching consequences
on the future of the victim as well as their family. He further
submitted that the discrepancy relating to the appellant following
the victim is a minor contradiction and on that score, the
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evidence of the victim cannot be disbelieved in toto. He further
argued that the victim cannot be said to be a tutored witness,
merely because she stated that her mother had instructed her
how to depose in Court while coming to the Court. The
statement of the victim is consistent throughout not only before
her mother immediately after the occurrence but also in her
statement before police and in her statement before the
Magistrate and also in Court at the time of trial. While concluding
the argument, it is argued that the chemical examination report,
which indicates that the blood, semen stains were not detected
on the frock and panti of the victim and also in the vaginal swab
cannot be a factor to discard the prosecution case as there is no
clear evidence as to whether any semen was discharged by the
appellant in the private parts of the victim and the panti of the
victim had also been removed by the appellant at the time of
occurrence and there is no evidence that the victim put on the
panti after the occurrence. It is argued that the manner in which
the appellant committed the offence of rape on a minor girl aged
about twelve years is really shocking and the substantive
sentence of ten years imposed by the learned trial Court is
minimum for the offence under section 6 of the POCSO Act so
also under section 376(2)(i) of the Indian Penal Code prior to its
amendment whereafter by omitting section 376(2)(i) of the
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Indian Penal Code, a specific sub-section (3) has been inserted
under section 376 of the Indian Penal Code prescribing
punishment for commission of rape on a women under sixteen
years of age to be not less than twenty years but which may
extend to imprisonment for life and similarly in section 6 of the
POCSO Act, it has been enhanced to not less than twenty years
but which may extend to imprisonment for life. It is argued that
in absence of any infirmity in the impugned judgment, the
appeal should be dismissed.
8. Adverting to the contentions raised by the learned
counsel for the respective parties and coming to the age of the
victim (P.W.1) at the time of occurrence, as per the prosecution
case, the occurrence took place on 05.04.2015. At the time of
recording of her statement under section 164 of Cr.P.C. on
07.04.2015, she stated her age to be ten years and that she was
a student of Class-V. She stated her age to be twelve years
when she deposed during trial as P.W.1 on 02.11.2016. The
school admission register of the victim was seized by the
Investigating Officer, which reflected her date of birth as
12.05.2004. The doctor (P.W.13) has also stated that the age of
the victim was in between eleven to fourteen years.
To attract the ingredients of the offence under
section 376(2)(i) of the Indian Penal Code, it is first necessary to
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prove that the victim was under sixteen years of age at the time
of occurrence. Similarly, for commission of offence under section
6 of the POCSO Act i.e. aggravated penetrative sexual assault on
a child, under section 2(d) of the said Act, it is stated that the
'child' means any person below the age of eighteen years. The
learned counsel for the appellant failed to show anything in the
evidence adduced by the prosecution that the observation of the
learned trial Court that the victim was under twelve years of age
at the time of occurrence was not correct. Therefore, I am of the
humble view that the learned trial Court has correctly assessed
the age of the victim to be under twelve years.
9. The victim (P.W.1) stated in her evidence that on
05.04.2015 at about 10.00 a.m., while she had been to the tank
to take her bath, the appellant came there, lifted her to Amari
bush, made her flat on the ground, removed her panti, slept
over her and did a nasty job and then the appellant left the place
giving threat to her to kill in case she disclose the matter before
anybody. Learned trial Court in exercise of its power under
section 165 of the Evidence Act, put some questions to the
victim for clarification as to what she meant by 'nasty job'. The
questions put by the Court and the answers given by the victim
are quoted herein below:
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"Q.1. What do you mean by saying that the
accused did a nasty job?
Ans: The accused committed rape on me.
Q.2. What do you mean by rape committed by
accused?
Ans: The accused after removing his pant and
my pant penetrated his penis to my
vagina several times."
Section 165 of the Evidence Act confers vast and
unrestricted powers on the trial Court to put any question it
pleases in any form at any time, to any witness or to the parties
about any fact relevant or irrelevant in order to discover the
relevant facts. So, when during cross-examination, the Court
interjected with a view to ascertain the correct position or the
correct meaning of 'nasty job' as deposed to the victim in the
chief examination, in my humble view, there was nothing wrong
as the Court was within its power to do so.
The victim further stated that while going to her
house after the occurrence, she met her mother on the way and
disclosed everything to her. Such evidence of the victim gets
corroboration from the evidence of her mother (P.W.2). This
evidence of the victim in that respect is relevant under section 6
of the Evidence Act as res gestae. To form a particular statement
as part of the same transaction as required under section 6 of
the Evidence Act, it must be simultaneous with the incident or
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substantial contemporaneous that is made either during or
immediately before or after the occurrence. In the case of
Gentela Vijayavardhan Rao -Vrs.-State of Andhra Pradesh
reported in (1996) 6 Supreme Court Cases 241, while
discussing section 6 of the Evidence Act, the Hon'ble Supreme
Court held that the principle or law embodied in section 6 of the
Evidence Act is usually known as the rule of res gestae
recognised in English Law. The essence of the doctrine is that
fact which, though not in issue, is so connected with the fact in
issue 'as to form part of the same transaction' becomes relevant
by itself. This rule is, roughly speaking, an exception to the
general rule that hearsay evidence is not admissible. The
rationale in making certain statement or fact admissible under
section 6 of the Evidence Act is on account of the spontaneity
and immediacy of such statement or fact in relation to the fact in
issue. But it is necessary that such fact or statement must be
part of the same transaction. In other words, such statement
must have been made contemporaneous with the acts which
constitute the offence or at least immediately thereafter. But if
there was an interval, however slight it may be, which was
sufficient enough for fabrication then the statement is not part of
res gestae.
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The victim further stated that the appellant was
coming behind her and seeing her mother, he ran towards the
jungle. P.W.2 also stated that by noticing her, the appellant fled
away towards the forest. Referring to the 164 Cr.P.C. statement
of the victim, though it was urged that the victim stated that
after the occurrence, the appellant fled away from the spot
giving threat to her and therefore, contradictory to the
statement under section 164 Cr.P.C., but in my humble view, the
same cannot be said to be such a major contradiction to falsify
the evidence of the victim in its entirety.
The learned counsel for the appellant urged that the
statement of the victim that the appellant was following her after
the occurrence appears to be very unnatural and ordinarily an
accused after committing the crime would not come behind the
victim of rape rather try to flee away. I am of the humble view
that the conduct of a person, either as a witness or as an
accused after the occurrence, may vary from person to person
and it is not expected that everybody should react in a particular
manner after the occurrence. An approach by a Court in
discarding the evidence on the ground of absence of a particular
type of reaction of a person, may be a witness or an accused
would be wholly unrealistic and unimaginative way. It depends
upon the upbringing of the person, his capacity to deal with
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adverse situation in life, his feelings and emotions. Therefore, it
cannot be said that there was any such improbability feature in
the conduct of the appellant following the victim for some time
after the occurrence and then running away towards the jungle
on seeing the mother of the victim. Thus, the testimony of the
victim which has not been shaken in the cross-examination, can
be safely relied upon as it appears to be clear, cogent and
trustworthy.
10. The doctor (P.W.13) who examined the victim on
06.04.2016 i.e. the next day of occurrence at Sub-Divisional
Headquarters Hospital, Kamakhyanagar has stated that though
he did not notice any physical clue on the examination of
clothing of the victim but he noticed signs of inflammation like
redness and the tenderness present in her vestibule and labia
minora area. In cross-examination, of course, the doctor has
stated that the inflammation, redness and tenderness which he
noticed on the labia minora of the victim would be possible due
to infection and that the labia majora of the victim was normal
but from this suggestion, it cannot be said that the doctor's
evidence completely negatives the evidence of the victim (P.W.1)
that the appellant penetrated his penis into her vagina for
several times. Law is well settled that in the absence of
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corroboration to the statement of the prosecutrix from the
medical evidence, her testimony cannot be discarded in toto.
It has been consistently held by different Courts that
the evidence of a victim of sexual assault stands almost on a par
with the evidence of an injured witness and to an extent is even
more reliable and it is not expected that a victim of rape to
shield the real culprit and implicate someone falsely in sexual
assault on her. Corroboration as a condition for judicial reliance
on the testimony of the prosecutrix is not a requirement of law
but a guidance of prudence under given circumstances.
Therefore, merely because the doctor (P.W.13) has noticed that
the inflammation like redness and tenderness present in her
vestibule and labia minora area and opined that it can also be
possible by infection would not be a factor to disbelieve the
evidence of the victim.
11. Coming to the argument advanced by the learned
counsel for the appellant that the victim is a tutored witness, it
cannot be accepted. The victim stated that her mother (P.W.2)
instructed her how to depose in Court. She has not stated that
P.W.2 instructed her as to what to depose in Court. The
statement of the victim immediately after the occurrence before
her mother, in her 164 Cr.P.C. statement and in her evidence
during trial is consistent that the appellant committed rape on
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her. No doubt, as per the chemical examination report, no blood
or semen stain were noticed in her frock and panti but as it
appears that before commission of rape, the panti of the victim
was removed by the appellant and there was no evidence of
discharge of semen by the appellant or the victim again putting
on the panti immediately after the occurrence.
12. In view of the foregoing discussions, I am of the
humble view that not only the evidence of the victim is
trustworthy but it gets corroboration from the evidence of her
mother and other witnesses. It is established by the prosecution
that the victim was under twelve years of age at the time of
occurrence. I find no illegality or infirmity in the impugned
judgment and order of conviction, which is accordingly upheld.
The learned trial Court has sentenced the appellant
for the conviction of offence under section 6 of the POCSO Act
and has not passed any separate sentence rightly under section
376(2)(i) of the Indian Penal Code in view of the mandates of
section 42 of the POCSO Act. The minimum substantive sentence
of ten years has been imposed under section 6 of the POCSO Act
which is wholly justified.
Learned counsel for the appellant argued that the
appellant has been sentenced to pay a fine of Rs.25,000/-
(rupees twenty five thousand), in default, to undergo further
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imprisonment for six months for commission of offence under
section 6 of the POCSO Act in addition to the substantive
sentence of rigorous imprisonment for ten years and since the
appellant is extremely poor and he has filed the Jail Criminal
Appeal, the said fine amount be reduced in the interest of
justice. Considering the submission made by the learned counsel
for the appellant, the fine amount of Rs.25,000/- (rupees five
thousand) is reduced to Rs.5,000/- (rupees five thousand) and in
default of payment of fine, the appellant shall undergo further
imprisonment for a period of one month in addition to the
substantive sentence of rigorous imprisonment for ten years.
In view of the evidence of the victim regarding threat
given to her by the appellant after commission of the crime to
kill her in case she would disclose the matter before anybody,
the conviction of the appellant under section 506 (Part-I) of the
Indian Penal Code and the sentence imposed thereunder by the
learned trial Court is also fully justified. The sentences imposed
on two counts as noted above shall run concurrently.
The compensation amount that has been fixed by the
learned trial Court was to the tune of Rs.1,50,000/- (rupees one
lakh fifty thousand) which was directed to be paid to the victim.
In view of the age of the victim at the time of occurrence and the
nature and gravity of the offence committed on the victim, I am
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of the view that the compensation amount should be enhanced
and therefore, it is necessary to recommend the case of the
victim to District Legal Services Authority, Dhenkanal to examine
the case of the victim after conducting the necessary enquiry in
accordance with law for grant of compensation under the Odisha
Victim Compensation (Amendment) Scheme, 2018 as per the
notification dated 20.10.2018 of Government of Odisha, Home
Department.
Let a copy of the judgment be sent to the District
Legal Services Authority, Dhenkanal for compliance.
Lower Court's record with a copy of this judgment be
communicated to the learned trial Court forthwith for information
and necessary action.
Accordingly, subject to modification of fine amount
for the conviction of the appellant under section 6 of the POCSO
Act as stated above, the criminal appeal being devoid of merits,
stands dismissed.
.................................
S.K. Sahoo, J.
Orissa High Court, Cuttack The 22nd July 2021/RKMishra/PKSahoo Page 21 of 21