Orissa High Court Sets Aside POCSO Conviction, Orders Victim To Refund Compensation As She Turned Hostile

The Orissa High Court has recently set aside the judgment of a Special Court under the POCSO Act, which found a man guilty of committing repeated penetrative sexual assault with a minor girl, on account of lack of substantial evidence connecting the accused to the crime and even the victim turning hostile against the prosecution. [2026 LiveLaw (Ori) 79]Giving relief to the accused-appellant, the Bench of Justice Aditya Kumar Mohapatra also noted that the victim and the accused have subsequently married and they have begotten a child out of the wedlock.“With regard to the fact that the Appellant has already married the victim and they have been blessed with a female child and that they are staying together as husband and wife and leading a happy conjugal life, this Court is of the view that the same gets support from the statement of the victim before this Court as well as the affidavit filed on behalf of the victim sworn before the Oath Commissioner of this Court, which, in the course of hearing of the appeal memo, was categorically admitted by the victim.”An FIR was lodged by the mother of the victim on 11.12.2020 alleging that the victim, who was purportedly about 16-year-old at that time, had been missing since 30.11.2020. Basing upon such allegation, a case was registered under Section 363, IPC. Upon conclusion of investigation, a charge-sheet was filed under Sections 363 (kidnapping), 366 (kidnapping woman to compel marriage), 376(2)(n) (repeated rape) of the IPC read with Section 6 (aggravated penetrative sexual assaut) of the POCSO Act.The Ad-hoc Additional Sessions Judge (FTSC), Jajpur, after conducting a thorough trial, came to the conclusion that the victim was a minor at the time of the alleged offence, her date of birth being 01.01.2004. The Judge also found the appellant to be guilty of kidnapping and having sexual intercourse with the victim repeatedly, and accordingly, convicted him under the aforementioned charges.Being aggrieved by the order of conviction, the appellant assailed the same before the High Court in appeal under Section 374(2) of the CrPC. After hearing the rival contentions and perusing the evidence on record, the High Court was of the view that the victim was in fact a minor at the time of occurrence.Nevertheless, while examining the impugned judgment, the Court learned that heavy reliance was placed upon the evidence of the examining doctor before whom both the accused and the prosecutrix admitted to have eloped from house and of having regular sexual intercourse for the last few days. This admission before the doctor, who later on stated the same before the trial Court, formed a substantial basis of conviction, notwithstanding the fact that the victim herself turned hostile and did not support the prosecution case.The Court noted an inherent inconsistency between the medical report and oral statement of the doctor. In the medical report, the doctor found no sign of recent sexual intercourse except for a hymenal tear, which she agreed to be possible through physical exercise or cycling. No bleeding from the vagina was found. Justice Mohapatra found this evidence to be critical. Thus, he observed–“Furthermore, although there is rupture of hymen however, there was no bleeding. In the event any sexual intercourse had in fact taken place during last 10 days, there should have been some bleeding. This is relevant because there are no eye witnesses and the victim has turned hostile. While accepting such evidence, the learned trial Court should have been more cautious and should have done more circumspection with regard to the allegation of rape.”Therefore, the Judge was of the opinion that the trial Court should have been more cautious while appreciating and accepting such weak evidence in favour of the prosecution, especially when stringent provisions of the POCSO Act were on the play. Further, the victim appeared in person before the High Court during the appeal hearing and stated to have married the appellant in the meantime. She also filed an affidavit affirming her marriage with the appellant and her disinclination to continue with the prosecution. It was also learnt that they had begotten a child from their marriage.Considering the precedents from the Apex Court in Mahesh Mukund Patel v. State of U.P. & Ors. (2025) and Madhukar v. State of Maharashtra, 2025 LiveLaw (SC) 710 and of the High Court in Fayazuddin Khan @ Badal Khan v. State of Odisha & Ors., 2025 LiveLaw (Ori) 43, where the Courts have quashed criminal proceedings involving charges of rape subsequent to the marriage between the parties, Justice Mohapatra deemed it proper to set aside the trial Court judgment.Accordingly, the appellant was ordered to be set at liberty. Significantly, the Court also ordered the victim to return the compensation amount to the tune of Rs.7,00,000/- (rupees seven lakhs), which was granted to her under the Odisha Victim Compensation Scheme, 2012 by the trial Court.Case Title: S v....

Orissa High Court Sets Aside POCSO Conviction, Orders Victim To Refund Compensation As She Turned Hostile

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Orissa High Court Sets Aside POCSO Conviction, Orders Victim To Refund Compensation As She Turned Hostile

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