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“Abuse is never contained to a present moment, it lingers across a person’s lifetime and has pervasive long-term ramifications” 

Justice S.K. Panigrahi cites Lorraine Nilon, an author who holds an experience of exploring the plight of child sexual abuse, while dismissing Bail Application of an accused repeatedly charged under the POCSO Act. 

The petitioner herein is accused with alleged commission of offences under Sections 342 and 376 IPC r/w Section 10 of the POCSO Act.

The prosecution's case is that on 24.04.2018 at about 2.00 PM, while the minor victim was moving alone in the village, the petitioner tried to lure by directing her to bring a mixture for him from the village shop. When the victim returned empty-handed, the petitioner, in the course of the conversation, took her inside his house and raped her by forcibly keeping her mouth shut. 

There is another case pending against the accused before Additional Sessions Judge, Nayagarh related to the same offenses committed against another minor, just three days prior to the commission of offenses under the present Bail Application. 

Learned Counsel for the petitioner submitted that the petitioner had been falsely implicated in the given case due to some prior grudge. Further, in the absence of any cogent materials, the prosecution has failed to establish a prima facie case against the petitioner.

With respect to the availability of cogent evidence proving a prima facie case, Court observed, “It is well settled that the victim of a sexual assault is not an accomplice. Nor is it an immutable rule of law that the testimony of a survivor cannot be acted without corroboration in material particulars. The injury suffered by the minor victim of sexual abuse is deeply physical, psychological, and emotional. In a given case, if the Court finds it difficult to accept the version of the victim, the Court would be justified in searching for evidence, direct or circumstantial, which lends assurance to her testimony. Such assurance, short of corroboration, is sufficient.” Reliance in this regard was placed on Fazal Mahmud v. State of Maharashtra, Criminal Appeal No. 845 of 2017.

For the testimony of a Child witness, Court considered the findings in Yogesh Singh v. Mahabeer Singh, AIR 2016 SC 5160, wherein it was held, “… it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him. Thus a child witness is easy prey to tutoring.”

Furthermore, referring to other cases bearing similar facts, the Court considered Radhakrishna Nagesh v. State of Andhra Pradesh, (2013) 11 SCC 688 and Amit Raoso Patil v. State of Maharashtra, Bail Application No. 1813 of 2020 Bombay HC.

Narrowing down to the facts and circumstances of the present case, the Court said, “From the perusal of the FIR, it appears that offenses under the Indian Penal Code are made out, which may be required to be further investigated. A perusal of the FIR and charge sheet filed in the present cases shows that there are very specific allegations against the Petitioner, who is the same person in both the cases arrayed as an accused. It is not, as if, the allegations are casual and sweeping against all the accused generally.”

Dismissing the Bail Application, Justice Panigrahi noted that upon perusing the records and charge sheet as a whole, it is not possible to conclude that they do not make out even a prima facie case against the Petitioner. “The petitioner seems to be a habitual sexual offender and should not be granted bail at least until the investigation is complete,” the Bench further remarked.

Case Title: Pramod Dehury v. State of Odisha | BLAPL Nos. 5656 & 5888 of 2020