Implementation of Pocso Act in Odisha
Prepared by: Hitabhilash Mohanty, LLM in Human Rights
INTRODUTION
Although there was a dilemma in national level for making payment of compensation to the victims under the Act which was only clear after enactment of POCSO Rules, 2020. The Odisha Victim Compensation Scheme was enacted by the Govt. of Odisha since 2012 and is amended time and again in order to provide adequate compensation to the victims. Apart from enactment of victim compensation scheme, the courts entrusted with the powers of Special Courts under the provisions of this Act have rightfully exercised their judicial power to punish the offenders under the provisions of POCSO Act. In Odisha, in exercise of the powers conferred by sub-section (1) of Section 28 of the POCSO Act, the State Government in consultation with the Chief Justice of High Court of Orissa, designated 24 special courts in the Court of Sessions to be special Court to try the offences under the said Act which have been established vide notification No. 9816 dated the 20th September, 2019 of the Government of Odisha in Law Department published in the Extraordinary issue of the Odisha Gazette bearing No. 1807, dated the 21st September, 2019.
This study analyses the victim compensation fund enacted by Odisha and few cases wherein the POCSO Court has rightly exercised their power. It is pertinent to mention herein that case studies below provide a glimpse of the response of judiciary in dealing with POCSO cases in Sample Districts. Apart from the cases analyzed from sample district, this study also lists few cases from Odisha other than sample district wherein capital punishment is ordered by POCSO court.
Table – 1: Details of the cases under POCSO Act in the Sample Districts
| Sl. No. | Sample Districts | Pending Cases | Disposed Cases | Total Cases |
|---|---|---|---|---|
| 1 | Koraput | 428 | 349 | |
| 2 | Mayurbhanj | 656 | 231 | |
| 3 | Sundargarh | 486 | 112 | |
| 4 | Kandhamal | 345 | 138 |
ODISHA VICTIM COMPENSATION SCHEME
In pursuance to Section 357-A of the Code of Criminal Procedure, 1973, the State Govt. in coordination with Central Government notified a scheme for providing funds for the purpose of compensation to the victims who have suffered loss or injury as a result of the crime and require rehabilitation. The said scheme is called as ‘The Odisha Victim Compensation Scheme 2012.’ The scheme aims at providing financial assistance to the victims and to provide support services such as shelter, counselling, medical aid, legal assistance, education, vocational training depending upon the needs of the victim.
Odisha Gazette bearing No. 1807, dated the 21st September, 2019, available at: http://govtpress.odisha.gov.in/pdf/2019/1826.pdf
For the purpose of implementing the said Scheme a fund was created which shall be operated by the Secretary, State Legal Services Authority. This Fund shall be credited with the money out of budget provisions made by the State Government for the purpose of the Scheme, all grants, subscriptions, donations and gifts made by the Central Government or any local authority and from all other sums received by or on behalf of the victim’s compensation from any source whatsoever including in compliance to any court order.
This Scheme shall cover the victims in case of death of the victim, his/her dependents or the members of the family of the victim who has suffered the atrocity resulting from the crime and the members who have been visited with a scar would be eligible for compensation as per the compensation order. Under the Scheme, the victim shall be entitled to financial assistance and restorative support services. Assistance under the Scheme shall be available in respect of each of the cases where the FIR is lodged.
ELIGIBILITY FOR COMPENSATION
The victims satisfying the following criteria shall be eligible for compensation
- The victim has not been compensated for the loss or injury under any other scheme of the Central or State Govt. or Insurance Company or any other institution. [the victim shall be free to choose another scheme of government if the same is more beneficial to the victim but cannot claim under multiple schemes simultaneously]
- The loss or injury sustained by the victim have caused substantial loss to the income of the family making it difficult to live as before without the financial aid or has affected the dignity or personality or the medical treatment of the mental/physical injury should have caused financial stress for the family.
- The victim shall cooperate with the police and prosecution from the stage of investigation till conclusion of trial of the case.
AUTHORITIES RESPONSIBLE UNDER THE SCHEME
- DISTRICT LEGAL SERVICES AUTHORITY (DSLA) shall perform the following functions:
- To consider claims and provide financial assistance and support services as prescribed in the Scheme
- To arrange for psychological, medical and legal assiatance to the affected persons.
- To arrange for councelling support to the affected woman including councelling for the spouse in case the affect woman is married
- To arrange shelter for affected woman for such period as may be required
- To arrange for education or vocational/professional training for the affected woman under the ongoing schemes
- Issue direction to the appropriate authorities to provide protection to the affected persons whenever deemed necessary
- To arrange for education or vocational/professional training for the affected woman under the ongoing schemes
- To issue directions to the appropriate authorities to provide protection to the affected persons whenever deemed necessary
- Whenever a recommendation is made to the court or an application is made by any victim under sub-section 4 of section 357A of CrPC to the District Legal Service Authority, thereafter, it shall examine the case and shall verify the content of the claim with regard to the loss or injury caused to the claimant
- DSLA may decide the quantum of compensation to be awarded to the victims on the basis of the loss caused including medical expense for treatment, minimum sustenance amount required for rehabilitation including such incidental charges such as funeral expenses.
- The quantum of compensation shall not exceed the maximum limit as per schedule.
ODISHA STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS
Given the mandate under POCSO Act, OSCPCR has initiated the following activities:
- Follow-up with States/UTs on implementation status of the POCSO Act;
- Follow-up with States/UTs on implementation of victim compensation schemes;
- Information sought from State/UT Police through Questionnaire on cases booked under POCSO Act and cases being reported to district CWCs, as required U/S 19 (6) of POCSO Act CWCs;
- Questionnaire administered to State/UT Secretaries of WCD/Social Welfare/ Social Defense seeking details of cases registered with CWCs under POCSO Act;
- Circulation of the following basic informative documents among SCPCRs:
- Advisory to Police
- Child Friendly Procedures for implementing POCSO Act, 2012
- Child Victim Charter
- Pamphlet on POCSO
- Guidelines for responding to CSA (child sexual abuse) Complaints.
- Preparation of Guidelineswith Lawyers Collective and UNICEF:
- Guidelines for Police,
- Guidelines for Special Courts,
- Guidelines for Special Prosecutors,
- Guidelines for CWCs, and
- Guidelines for Health professionals.
- Preparation of IEC material;
- Review of IEC material for preventing child sexual abuse prepared by State/UT and NGOs initiated to identify best practices and to disseminate same among other States/UTs.
INDICATIVE CASES ON IMPLEMENTATION OF THE ACT
Table – 2: POCSO CASE STUDY – I
State v. Keshab Pattnaik, T.R. CASE NO. 73/2019
| SL. NO. | PARTICULARS | REMARKS |
|---|---|---|
| 1 | Date of Offence | 03.08.2019 |
| 2 | Date of Judgement | 17.02.2020 |
| 3 | Place | Kantabedi, Koraput |
| 4 | Criminal Charges | U/S 354 IPC, U/S 8 of POCSO Act |
| 5 | No. of Victims | 1 |
| 6 | Nature of Disposal | Contested-Acquitted |
BACKGROUND FACT
- The accused was working as the Headmaster of the Tentuliguda U.P. School. The victim was a student of Class VIII in that school. On 03.08.2019 he called the victim girl, aged about 13 years old, and abruptly touched her private parts. The victim intimated the fact to her parents and thereafter, her grandfather reported the matter at the P.S.
- After registration of the case, the Inspector-in-Charge himself took up the charge of investigation. During investigation, the I.O. visited the spot, and examined the witnesses.
- He sent the victim for medical examination and after completion of investigation; he submitted the charge-sheet.
HELD BY POCSO COURT
- It was observed that the informant has not whispered a single word to involve the accused in this case. Similarly, the other witnesses deposed in the same lines as deposed by the victim. All the witnesses were declared hostile.
- The accused Keshab Pattanaik not guilty of the offences punishable under Sec. 354-A of the I.P.C. and under sec. 8 of the POCSO Act and for which he is hereby acquitted there from under Sec. 235(i) of the Cr.P.C. He is set at liberty forthwith.
Table – 3: POCSO CASE STUDY – II
State v. Bandu Tadingi, T.R. CASE NO. 62/2018
| SL. NO. | PARTICULARS | REMARKS |
|---|---|---|
| 1 | Date of Offence | 20.12.2018 |
| 2 | Date of Judgement | 13.11.2019 |
| 3 | Place | Narayanpatna, Koraput |
| 4 | Criminal Charges | U/S 458, 376(2)(f)(n), 506 I.P.C. and under Sec. 6 POCSO Act. |
| 5 | No. of Victims | 1 |
| 6 | Nature of Disposal | Contested-Acquitted |
BACKGROUND FACTS
- On 20.12.2017 around 10.00 A.M. the victim who was aged about 14 years old by then was alone inside her house at village Talagumandi under Narayanpatna P.S. Finding her alone, the accused who happens to be her paternal uncle forcibly entered into the house.
- While the victim asked the accused about the reason for coming, the accused caught hold of the victim and dragged her to inside house.
- The accused again threatened her not to open her mouth. Thereafter, the accused laid the victim on the floor and forcibly committed rape on her.
- Out of fear, the victim did not disclose the fact to anybody else. Subsequent to such incident, the accused started visiting the victim while she was alone and repeatedly committed rape on her. The victim became pregnant and the matter was ultimately convened to her parents.
HELD BY POCSO COURT
- It was observed that the informant in her cross-examination has clearly stated that her marriage with the accused is likely to be solemnized after his release from custody. So, there would not be any doubt that only because of a settlement, the family members are not supporting their own case.
- It was observed that there is a mismatch between the facts mentioned in FIR story and medical report. FIR story stated that the victim was pregnant while lodging of FIR but the medical report stated that the victim was not not pregnant.
- Hence, the accused was not held quilty.
Table – 4: POCSO CASE STUDY – III
State v. Dama (Siba Mahanta) & Others. C.T. CASE NO. 51/2014
| SL. NO. | PARTICULARS | REMARKS |
|---|---|---|
| 1 | Date of Offence | 27.06.2013 |
| 2 | Date of Judgement | 27.02.2017 |
| 3 | Place | Bagidiha, Mayurbhanj |
| 4 | Criminal Charges | persons U/s 363/366/376/34 of the I.P.C and U/s 6 of the POCSO Act. |
| 5 | No. of Victims | 1 |
| 6 | Nature of Disposal | Contested-Acquitted |
BACKGROUND FACT
- On 27.6.13, night at Bagidhia, the accused persons kidnapped the victim who was aged about 14 years without her consent. After 3 days of searching the daughter, the father came to know that one Doma Mohanta, S/o Samal Mohanta of Vill-Bagdiha, the present accused took away his daughter along with the co-accused persons in order to marry her. On the report of the informant, the I.I.C., Baripada Town P.S registered P.S. case No. 203, dtd. 30.06.13, U/s 363/ 366- A/ 109 of I.P.C and later on the case turned to Sec. 366/366- A/109/376 I.P.C and Sec.4/6/8 of the POCSO Act and took up investigation.
- On 28.5.14 rescued the victim girl along with her baby and the accused Dama @ Shiba Mohanta from his house in Nelore, Andhra Pradesh. After interrogation, the accused Dama @ Shiba Mohanta, confessed his guilt. The I.O also arrested the accused,seized the wearing apparels of both the victim and the accused, sent them for their medical examination to D.H.H.,Baripada. The victim girl denied to be medically examined
- The I.O., submitted charge sheet against the accused persons U/s 363/366/376/34 of the I.P.C and U/s 6 of the POCSO Act.
HELD BY POCSO COURT
- The victim was declared hostile by the prosecution on being cross-examined U/s 154 of the Indian Evidence Act. nothing could be elicited to corroborate the prosecution stand in any manner whatsoever. Even she has gone to the extent of denying about her medical examination or seizure of her wearing apparels. Hence, the accused was not held guilty.
Table – 5: POCSO CASE STUDY – IV
State v. Rajesh Kumar Tudu, C.T. CASE NO. 87/2018
| SL. NO. | PARTICULARS | REMARKS |
|---|---|---|
| 1 | Date of Offence | 14.07.2018 |
| 2 | Date of Judgement | 28.08.2019 |
| 3 | Place | Kuliana, Mayurbhanj |
| 4 | Criminal Charges | U/s. 376(3)(n) of IPC and Sec.6 POCSO Act. |
| 5 | No. of Victims | 1 |
| 6 | Nature of Disposal | Contested-Acquitted |
BACKGROUND FACTS
- The accused was engaged as a labour in the house of one Lagen Tudu of village Bijabani and stayed there. As Lagen Tudu is the neighbour of the informant, the accused was in visiting terms to the house of the informant and thereby came in contact with his minor daughter aged 16 years.
- Taking undue advantage of such acquaintance, the accused committed sexual assault on her resulting in her pregnancy. Basing on the aforesaid information, Kuliana P.S. case no.55 dtd.14.07.2018 was registered U/s.376(3)(n) read with Section 6 of POCSO Act and investigation commenced.
HELD BY POCSO COURT
- All the witness examined including the father and mother of the victim and the victim herself turned hostile and rather expressed their ignorance. Hence, the accused was not found guilty and acquitted.
Table – 6: POCSO CASE STUDY – V
State v. Dayasagar Barla, G.R. CASE NO. 44/2016
| SL. NO. | PARTICULARS | REMARKS |
|---|---|---|
| Date of Offence | 07.07.2016 | |
| 1 | Date of Judgement | 09.08.2017 |
| 2 | Place | Kinjirkela, Sundargarh |
| 3 | Criminal Charges | U/s.366/376(2)(i)(m)/506 IPC and Sec.6 POCSO Act. |
| 4 | No. of Victims | 1 |
| 5 | Nature of Disposal | Contested-Acquitted |
BACKGROUND FACTS
- On 7.7.2016, at about 7.30 p.m in the evening while the victim was returning home attending call of nature, the accused told her over phone to take wages of her father coming to one Mitu’s shop. On arrival of the victim there, the accused threatened her and took her into the jungle where he committed rape on her twice. The accused who had kept his motor cycle in a room inside the jungle took the victim on that motor cycle at about 1 a.m in the night to a room of Govt. girls High School where he also forcibly raped her.
- When the victim cried, the accused assured her not to cry as he will marry her. In the early morning, the accused brought the victim to the road running from Topatangar to Sundergarh, where the victim told the accused to leave her at home but the accused purchased one Chuni from Kinjirkela and gave the same to the victim. Telling to leave her at home , took her to Budatangar school and left there giving further threatening not to disclose the fact to anybody else.
- But subsequently on 9.7.2016 at about 4 p.m the accused abused the family members of the victim in filthy language. On presentation of the written report on 10.7.206 at about 4.30 p.m, Kinjirkela P.S.case no.44 of 2016 U/s.366/376(2)(i)(m)/506 IPC read with Section 6 of Protection of Children from Sexual Offences Act, was registered and investigation was taken up.
HELD BY POCSO COURT
- During course of investigation, the I.O examined the victim, her father, mother and sent the victim for medical examination. The I.O visited the spot, examined other witnesses. He arrested the accused, seized his wearing apparels with the wearing apparels of the victim, seized the motor cycle used by the accused in committing the crime ,forwarded him to court. On receipt of medical examination report and after completion of due investigation, the I.O submitted charge sheet u/s 366/376(2)(i)(m) of the IPC read with Section 6 of POCSO Act. Subsequently, charges were framed against the accused and the contents of the charges were read over and explained to him.
- The evidence of the victim discloses that there was a quarrel for payment of wages when the victim had been to the accused for wages. Thus, the evidence of the victim and other material witnesses i.e. of her parents do not disclose any incriminating material as regards facts of the prosecution case.
- The victim had re-siled from her earlier statement during her evidence in the court. Hence, the accused was not found guilty and acquitted.
Table – 7: POCSO CASE STUDY – VI
State v. Hemanta Kanhar, G.R. CASE NO. 84/2015
| SL. NO. | PARTICULARS | REMARKS |
|---|---|---|
| 1 | Date of Offence | 21.05.2015 |
| 2 | Date of Judgement | 24.04.20191 |
| 3 | Place | Phulbani Sadar, Kandhamal |
| 4 | Criminal Charges | U/s.366/376(2)(i)(m)/506 IPC and Sec.6 POCSO Act. |
| 5 | No. of Victims | 1 |
| 6 | Nature of Disposal | Contested-Acquitted |
BACKGROUND FACTS
- On 21.05.2015, in the evening hour the daughter of the informant had gone to attend call of nature, but she did not return to her house. The informant searched her and did not trace out her. He came to know that, the accused had kidnapped his daughter. Thereafter he reported the matter to the police. The police registered the case and took up investigation, on completion of investigation, submitted Charge Sheet against the accused U/s-363/366/376(2)(n) of IPC and R/w Sec 06 of POCSO Act.
- On 21.07.2015 the medical officer in Gunjibadi CHC examined the accused and found he is capable of sexual intercourse.
HELD BY POCSO COURT
- The victim daughter was 19 years on the date of occurrence and the informant (father of victim), victim herself and her mother did not say anything against the accused that the accused kidnapped the victim and committed forcibly sexual intercourse with the victim. Hence, the accused is held not guilty and acquitted.
Table – 8: POCSO CASE STUDY – VII
| Sl. No. | Particulars | Remarks |
|---|---|---|
| 1 | Date of Offence | 20.01.2019 |
| 2 | Date of Judgement | 26.07.2019 |
| 3 | Place | Banarpal, Anugul |
| 4 | Criminal Charges | U/S 376 (3), 302, 201 of IPC and U/S 6 of POCSO Act |
| 5 | No. of Victims | 1 |
| 6 | Punishment | Death Sentence |
BACKGROUND FACTS
- An incident took place near Kangula village on 20th January 2019 that had shaken the State of Odisha. The 13-year-old girl was carrying lunch for her father to his shop at Lingarakata nullah, one km from their home, at around 2 pm when Dehuri accosted her.
- The man professed love for the girl and when she rejected his overture, he abducted her to a forested area near the village. The girl tried to resist but he attacked her with a stone. As she fell down unconscious, he raped her. After some time, when the girl regained consciousness, fearing that she might disclose the matter to the villagers, he again hit her with the stone and killed her.
- He, then, dragged and ditched the body in a big shrub and fled from the spot with the help of interstate trucks to Kolkata. When the girl did not reach the shop, her father began frantically searching for her.
- He was shocked to find her mutilated body in a bush at Lingarakata nullah and filed a case at the police station. Following investigation, police nabbed Anam from Kolkata. The stone along with other material evidence was recovered and DNA profiling of the accused was also done.
- Investigation of the case was completed within 30 days and charge sheet was submitted under section 376 (3), 302, 201 of IPC and section 6 of POCSO Act, 2012.
HELD BY POCSO COURT
- Holding the accused Anam Dehuri of the same village guilty of the barbaric crime, the Special Judge of POCSO court Suresh Chandra Pradhan pronounced sentences after examining 36 witnesses awarded death sentence to Anam mainly on three counts – Capital punishment for rape of minor girl, rigorous imprisonment for life for murder and seven year imprisonment for destruction of evidence.
- The victim’s case has been recommended to the District Legal Service Authority for compensation under Victim Compensation Scheme.
CURRENT STATUS
- The death sentence was referred to the High Court of Odisha at Cuttack for confirmation.
- The accused also filed a criminal appeal against the trial court judgment on August 20, 2019.
- A Government lawyer was appointed as his defence counsel after the Angul District Bar Association resolved that none of its members would represent the accused in the trial.
- Was listed before the division bench of Justice SK Mishra and Justice AK Mishra on 04.09.2019 but it was adjourned as the High Court was suspended after a full-court reference over the death of a member of the Bar.
Table – 9: POCSO CASE STUDY – VIII
| Sl. No. | Particulars | Remarks |
|---|---|---|
| 1 | Date of Offence | 15.06.2018 |
| 2 | Date of Judgement | 28.08.2018 |
| 3 | Place | Betanati, Mayurbhanj |
| 4 | Criminal Charges | U/S 376 (3), 302 IPC and U/S 6 of POCSO Act |
| 5 | No. of Victims | 1 |
| 6 | Punishment | Death Sentence |
BACKGROUND FACTS
- The ghastly incident occurred in June 15, 2018 at Garudabasa village under Betanati police limits in Mayurbhanj District. A man accused in this case was identified as Jamini Mohnata who allegedly raped an eight-year-old girl and later stoned her to death. The victim’s family was provided with a financial relief of Rs 5 lakh from the Chief Minister’s Relief Fund.
HELD BY POCSO COURT
- The Additional District and Sessions Judge exercising the power of POCSO Court awarded capital punishment to a man to the accused in charge of raping and murdering a minor girl in June 2018.
- The trial was completed in 14 weeks.
- The victim’s case has been recommended to the District Legal Service Authority for compensation under Victim Compensation Scheme.
Table – 10: POCSO CASE STUDY – IX
| SL. NO. | PARTICULARS | REMARKS |
|---|---|---|
| 1 | Date of Offence | 20.03.2019 |
| 2 | Date of Judgement | 10.09.2019 |
| 3 | Place | Erasama, Jagatsinghpur |
| 4 | Criminal Charges | U/S 376 (3), 302 IPC and U/S 6 of POCSO Act |
| 5 | No. of Victims | 1 |
| 6 | Punishment | Death Sentence |
BACKGROUND FACTS
- On 20th of March, 2018 accused Laba Manna had raped and murdered the minor girl in the cashew field of Tapan Gahan in Gadaharishpur under Erasama police limits. The accused had raped and murdered the nine-year-old girl after forcibly lifting her while she was playing.
HELD BY POCSO COURT
- The POCSO Court of Judge Dr Moonrani Mishra convicted and awarded death sentence to Laba based on the depositions of 25 witnesses for committing rape and murder of minor under IPC and POCSO Act.
- The victim’s case has been recommended to the District Legal Service Authority for compensation under Victim Compensation Scheme.