Rape

Case BriefsHigh Courts

Madhya Pradesh High Court: A Division Bench of J.K. Maheshwari and Anjuli Palo, JJ. partly allowed a criminal petition filed by a person accused of rape and murder of his minor daughter, and commuted his death penalty to life imprisonment.

In the instant case, the prosecutrix (since deceased) aged six years was the younger daughter of the appellant. She was residing with her mother and the appellant. The appellant was annoyed and having suspicion on his wife, Farida of questionable character. As he wanted to take revenge, he allured the prosecutrix with chocolates and used to commit unnatural intercourse and rape with his minor daughter. After committing the rape with the prosecutrix, he murdered her, hanged her from the ceiling with the help of a dupatta and then fled away from the spot. Police registered a case under Section 174 of the Code of Criminal Procedure, 1973. The DNA test report revealed that the DNA profile of appellant matched with the DNA profile present in the vaginal swab of the prosecutrix and sperms were also present in the vaginal swab. Due to the aforesaid evidence, police filed charge-sheet against the appellant under Sections 376, 377, 302 and 201 of the Penal Code, 1860 and Section 5(m) read with Section 6 of the Protection of Children from the Sexual Offences Act, 2012. Trial Court convicted the appellant and awarded him a death sentence. The matter was referred to this Court for confirmation of the death sentence under Section 366 (1) of CrPC. The appellant had challenged the findings recorded by the trial court by filing the separate appeal under Section 374 (2) of CrPC.

The learned counsel for the appellant, Surendra Singh and Siddharth Sharma argued that the dupatta which was used by the deceased for hanging herself was not examined at the time of postmortem. It was further contended that conviction could not be based only on the DNA and Forensic Science Laboratory (FSL) reports. Hence, the impugned judgment was liable to be set aside and the appellant was entitled to be acquitted from the charges leveled against him.

The learned counsel for the respondent/State, Som Mishra contended that the Trial Court had properly evaluated the evidence available on record and rightly convicted the appellant and awarded sentence befitting the crime. Hence, the appeal filed by the appellant was liable to be dismissed and allowing the criminal reference, the death sentence may be confirmed.

The Court stated that in the rarest of the rare cases, death sentence ought to be awarded. For this, the Court relied on the judgment of Supreme Court in the case of Mofil Khan v. State of Jharkhand, (2015) 1 SCC 67, in which the Supreme Court had opined that the death sentence must be awarded where the victims were innocent children and helpless women, especially when the crime was committed in the cruelest and inhumane manner which was extremely brutal, grotesque, diabolical and revolting.

The Court drew a balance sheet of aggravating and mitigating circumstances to determine if the death penalty was adequate punishment. Aggravating circumstances: (i) extremely brutal, diabolic and cruel act; (ii) victim being six years was a minor and helpless; (iii) no provocation because the accused was in a dominating position; (iv) injuries were grievous with respect to sexual assault particularly in a case where the victim was the daughter of the appellant. Mitigating circumstances: (i) it was a case of circumstantial evidence; (ii) no evidence that the accused had the propensity of committing further crimes causing continuous threat to the society; (iii) no evidence to show that the accused could not be reformed or rehabilitated; (iv) other punishment options were open; (v) accused was not a professional killer or offender having any criminal antecedent; (vi) accused being a major having family with him, the possibility of reformation could not be ruled out.

Thus, the Court held that in place of the death penalty, the appellant undergoes life imprisonment with a minimum of 30 years of imprisonment (without remission) and fine of Rs 20,000. In default of payment of fine, the appellant had to undergo further rigorous imprisonment for six months. The conviction and sentences awarded under Sections 201, 377, 376 of IPC as awarded by the trial court were held to be just and hence, hereby maintained.

The criminal appeal filed by the appellant was partly allowed.[Afjal Khan v. State of Madhya Pradesh, Criminal Appeal No. 458 of 2019, decided on 17-05-2019]

Hot Off The PressNews

Supreme Court: The Court has dismissed the bail plea of self-styled preacher Asaram Bapu in connection with a sexual assault case lodged against him in Gujarat. The bench headed by Justice N V Ramana was informed by Solicitor General Tushar Mehta, appearing for the Gujarat government, that the trial in the case was going on and 210 witnesses were yet to be examined.

The bench, while dismissing the bail plea, said the lower court will proceed with the trial and will not be influenced by the prima facie observations given by the Gujarat High Court earlier while dismissing Asaram’s plea. Two Surat-based sisters had lodged separate complaints against Asaram and his son Narayan Sai accusing them of rape and illegal confinement among other charges.

(Source: PTI)

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Sandeep Mehta and Abhay Chaturvedi, JJ. contemplated an appeal where the appellant had been convicted and sentenced under Sections 363 and 376 of Penal Code, 1860 and Section 3(2)(v) of SC/ST Act i.e. commission of any offence under the IPC punishable with imprisonment for a term of ten years or more against a person or property [knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member], shall be punishable with imprisonment for life and with fine.

Minimal facts relevant for proper appreciation of the case are that one Asha Bhai lodged an FIR against the appellant for alleged rape and kidnapping of the minor granddaughter of the complainant. Complainant, victim and the appellant were travelling to Ahmedabad when the appellant alleged drugged Asha and when he regained her consciousness there was no trace of the minor victim and the appellant. Subsequently, an investigation was conducted and charge-sheet was filed. Appellant was charged under various Sections of IPC and under Section 3(1) (xii) of SC/ST (Prevention of Atrocities) Act. As the charge under SC\ST Act was added the case was duly transferred to the Special Judge for trial. After the trial, the Judge convicted the appellant, hence the instant appeal was preferred.

The counsel for the appellant, Pradeep Shah, submitted that judgment passed by the trial court was bad in the eyes of law. He urged that there was no allegation of any of the prosecution witnesses that the accused kidnapped or subjected the victim to rape with the intention of committing offence on a member of the Scheduled Caste community. He further argued that the conviction of the accused of the offence under Section 3(2)(v) of the SC/ST Act was prima facie illegal. It was further submitted that the victim was not a minor and there was no proper evidence to prove otherwise. It was contended that the alleged victim resided with her own will and never protested hence the physical relation was consensual and no case of rape was to be made.

Learned Public Prosecutor, N.S. Bhati vehemently and fervently opposed the submissions advanced by the appellant. He urged that the victim had given cogent testimony at the trial stating that she was a minor on the date of the incident. The accused lured her away on the premise that he would get her father released from prison. Entertaining this bonafide belief, she accompanied the accused and her grandfather for going to Ahmedabad. The accused gave a slip to her grandfather and forced her to board a train. She was taken to Mahsana where she was kept in a house which is at an isolated place. There, the accused repeatedly subjected her to sexual intercourse. It was further submitted that the medical report pointed towards the alleged rape and the age of the minor was also confirmed accordingly.

The Court, gave thoughtful consideration to the arguments of the parties and observed that “Prima facie, from the evidence available on record, it is duly established and we are fully satisfied that the accused committed the offence under Sections 363 & 376 IPC not because he wanted to sexually assault a member of the scheduled caste community but these offences were perpetrated by the accused in order to satisfy his carnal desires.”

The Court further relied on the judgment in, Masumsha Hasanasha Musalman v. State of Maharashtra, (2000) 3 SCC 557, where the Supreme Court in a similar case opined that, the case was not designated against the SC/ST community specifically. Hence the Court opined that the finding recorded by the trial court whereby the accused was held liable for the offence under Section 3(2)(v) of the SC/ST Act and was sentenced to life imprisonment on this count is ex-facie illegal and contrary to record. Hence, the Court set aside the impugned judgment to that extent. Further, it observed that the remaining Judgment of the trial court was legal. Thus the appeal was allowed partly.[Kesa Bhai v. State of Rajasthan, 2019 SCC OnLine Raj 1403, decided on 02-07-2019]

Case BriefsHigh Courts

Bombay High Court: S.S. Shinde, J. denied to quash the charges under Sections 376 and 420 IPC as prayed by the petitioner and further the Court ordered for a trial to take place on the basis of evidence recorded.

The present petition was filed to quash the charges against the petitioner in a case pending before the Sessions Court for Borivali Division at Dindoshi-Goregaon, Mumbai. The charges were framed under Sections 376 and 420 of the Penal Code, 1860.

Contentions by the Counsels:

Counsel for the petitioner, Samarth S. Karmarkar submitted that in the FIR that was lodged by Respondent 1 alleging offence under Section 420 IPC, there was no whisper about an allegation in respect to sexual assault. Further, it was stated that, the supplementary statement of Respondent 1 was the only thing in which allegations against the petitioner are made out that under the pretext and promise, he would marry Respondent 1, extracted huge amount from Respondent 1 and sexually exploited her.

Per contra, N.B. Patil, APP, submitted that overwhelming evidence had been collected by the Investigating Officer during the investigation and evidence of prosecutrix assumes importance which has to be treated on a high pedestal, therefore the petition may be rejected.

The High Court on perusal of grounds and submission of the parties opined that only way to resolve the controversy arising is by way of appreciating the material collected during the course of investigation by way of trial.

Therefore, the Court held that, material collected during the investigation has to be tested during the trial and also the allegations made in the FIR along with the ones in the supplementary statement. Relying on the Supreme Court Judgment in Anurag Soni v. State of Chhattisgarh, 2019 SCC OnLine SC 509, it was observed that no case is made out to invoke extraordinary writ jurisdiction and the prayer of the petitioner has to accede. Trial Court shall not get influenced by observations made during the course of the trial. [Vishal Ramnayan Singh v. XYZ, 2019 SCC OnLine Bom 1141, decided on 26-06-2019]

Case BriefsHigh Courts

Tripura High Court: Sanjay Karol, CJ, dismissed a criminal appeal filed against the decision of the Additional Sessions Judge whereby the appellant was convicted under Section 376 IPC committing rape on the prosecutrix.

The prosecution alleged that the appellant made sexual relations with the prosecutrix, who was of unstable mind, on the false pretext of marrying her. As a result, the prosecutrix became pregnant and she delivered a still-born child. It was alleged that the appellant was now refusing to marry her. The prosecutrix deposed before the Court: “he promised marriage to me and have sex. I became pregnant. He did not marry me.” The appellant was tried and convicted by the trial court as stated above. Aggrieved, the appellant, represented by Ratan Dutta and Simita Chakraborty, Advocates, filed the present appeal. Per contra, Babul Chaudhary, Public Prosecutor, opposed the same.

The High court was of the view that the present case attracts Section 375 (rape) read with Section 90 (consent known to be given under fear or misconception) IPC. The corollary deduced upon a conjoint reading of the sections was stated thus: “an offence of rape would be deemed to have been committed if a man has sexual intercourse with a woman without her consent. A consent obtained under the misconception of fact, would not amount to be a consent within the purview of Section 90 IPC.”

The Court relied on Kaini Rajan v. State of Kerala, (2013) 9 SCC 113; Deepak Gulati v. State of Haryana, (2013) 7 SCC 675; and Anurag Soni v. State of Chhattisgarh, 2019 SCC OnLine SC 509, and held that “It stands established and proven that from the very inception, the appellant, by promising marriage, obtained consent to enter into a sexual relationship, though he never had any intention to marry and the prosecutrix who gave her consent for sexual intercourse with the assurance by the accused of marrying her. Such consent can very well be said to be a consent obtained on a misconception of fact as per Section 90 IPC and, in a case of such like nature, consent would not excuse the offender.”

The Court held the appellant guilty as charged and therefore dismissed his appeal while upholding the conviction and sentence passed by the trial court.[Marendra Debbarama v. State of Tripura, 2019 SCC OnLine Tri 257, decided on 27-06-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court:  Fateh Deep Singh, J. allowed the application of bail on the ground that petitioner was behind the bar and that culpability will be determined during the trial which was not going to be concluded in near future.

A petition for regular bail was made for the offence under Sections 342, 354B, 376, 511/34, 450 of the Penal Code, 1860.

The facts of the case were that the accused petitioner and his sons forcibly took the complainant into a room, tore off her clothes, abused her, tried to violate her and gave her beatings against which the FIR was made the very next day of the incident.

G.C. Shahpuri, counsel for the petitioner argued that bare perusal of the FIR would show that no allegation of actual rape has come about and being a pure case of matrimonial dispute, in which the petitioner has no role to play except that he happens to have intervened into the matrimonial dispute, he has been falsely implicated. Thus, prayed for the anticipatory bail.

Baljinder S. Virk, Deputy Advocate General, stoutly opposed the grant of relief on the grounds that if allowed bail the petitioner might stifle the trial.

The High Court opined that no useful purpose will be served by keeping the petitioner in the custody as petitioner was already behind the bars for more than seven months and culpability shall be determined at the end of the trial which was not likely to conclude in the near future.  It was also instructed that anything observed herein shall not be construed as an expression on the merits of the case. Thus, ordered the release of petitioner on regular bail. [Dalip Bera v. State of Haryana, 2019 SCC OnLine P&H 669, decided on 28-05-2019]

Case BriefsHigh Courts

Delhi High Court: A Bench of Manmohan and Sangita Dhingra Sehgal, JJ. dismissed an appeal filed by the prosecutrix under Section 372 CrPC challenging the trial court’s judgment whereby the accused was acquitted of the charge of rape.

Simran Sadyora and Sanjeev Bhatia, Advocates, representing the prosecutrix, submitted that the trial court failed to appreciate that there is a presumption under Section 114-A of the Evidence Act as to absence of consent in a case for prosecution of the offence under Section 376 IPC and consequently the onus to prove that he had not committed the offence under Section 376(2)(n) had shifted to the accused.

At the outset, the High Court observed: “the presumption under Section 114-A of the Evidence Act would only be attracted if the factum of sexual intercourse is proved.” It was noted that the prosecutrix had refused an internal medical examination. the Court was also of the opinion that her testimony was highly unreliable, untrustworthy and inspired no confidence. It was noted further that the delay in registering FIR was not successfully explained. Also, she made 529 calls to the accused between the dates of the alleged rape and filing of the complaint. Her acts were inconsistent with her allegations. Moreover, the factum of sexual intercourse remained not proved. Keeping on view such and other findings, the Court held that the accused was entitled to be given benefit of doubt. Hence, the appeal was dismissed. [Rachna Singh v. State (NCT of Delhi), 2019 SCC OnLine Del 8519, decided on 13-05-2019]

Case BriefsForeign Courts

South Africa High Court, Kwazulu-Natal Division: This appeal was filed before a Division Bench of Gorven, J and Ntshulana, AJ preferred against the convictions and sentence for the offence of rape of two minor girls in contravention of Section 3 read with Sections 1, 56(1), 57, 58, 59, 60 and 61 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

The appellant was sentenced to undergo life imprisonment for both the rapes committed but for sentences, they were treated as one and his name was entered into the register for sexual offenders in terms of Section 50 of the Act. The Court noted that throughout the trial, the appellant had only challenged the evidence which was based on his plea of alibi and that incident was fabricated due to a family feud which was later rejected as false beyond a reasonable doubt. Appellant had contended that medical evidence failed to prove offence and thus he should be acquitted.

High Court relied on a case of S v. Hadebe, 1997 (2) SACR 641 (SCA) where it was held that if there was no material misdirection by the Trial Court, it was to be presumed to be correct. Thus, the Court concluded that evidence on record did not show any misdirection. Therefore, in the absence of substantial and compelling circumstances, the sentence was sustained and the appeal preferred against conviction and sentence was dismissed. [Sibonelo Bo Ngobese v. State, Case No. AR751 of 2017, decided on 29-03-2019]

Case BriefsForeign Courts

South Africa High Court, Kwazulu–Natal Division: This appeal was preferred before the Bench of Ploos Van Amstel, J., against the order of conviction and sentence of appellant passed by regional Magistrate for commission of crime of rape in contravention of Section 3 of the Criminal Law (Sexual Offences and Related Matters) Act, 2007.

Facts of the case were such that the complainant a minor girl alleged appellant for the offence of raping her on several occasions between the years 2012 to 2015. The case went before the Magistrate where he was sentenced to life imprisonment.

Mkumbuzi, Counsel on behalf of the appellant submitted that complainant was not a competent witness and thus, her evidence was inadmissible on the ground that Magistrate had failed to establish if complainant understood the difference of truth and lies or the consequences of lying in accordance with Section 164(1) of the Act, 1977. Case of DPP v. Minister of Justice and Constitutional Development, 2009 (4) SA 222 (CC) was relied on where it was stated that a child unable to comprehend what it was to speak the truth cannot be admonished to speak the truth and hence, was an incompetent witness and cannot testify.

High Court was of the view that the rationale behind a person to be admonished to speak the truth was to make sure that the evidence was reliable without which the appellant’s right to a fair trial would be compromised.  Agreeing with the submissions of the appellant the conviction and sentence were set aside and the appeal was allowed. [SS v. State, CASE NO. AR 220 of 2018, Order dated 01-03-2019]

Case BriefsHigh Courts

Bombay High Court: Sadhana S. Jadhav, J. dismissed an appeal filed against the Judgment of the Additional Sessions Judge whereby the appellant was convicted for the offence of rape punishable under Section 376(2)(f) IPC.

This was a traumatic story of a minor victim aged 10 years who was sexually assaulted by her father. She was taken to the agricultural field by her father from the middle of the school and rape was committed on her. The father was convicted by the trial court. The present was an appeal against his conviction.

It may be noted that during her examinations, the little girl — the victim, turned hostile and stated: “It is true that I am feeling that my father should get free from the jail, as early as possible.” Her evidence concluded in denial: “It is not true that to help my father I am not disclosing true fact before the court.” She even denied that she was admitted in the civil hospital. Little did the innocent soul know that the same was being corroborated by medical case papers.

The High Court held that the appellant’s conviction as recorded by the trial court deserved to be upheld. His guilt was proven beyond doubt through prosecution evidence, the prime from which being the medical evidence. Other cases were discussed wherein it had been held that if a witness turns hostile, his statement given to the Magistrate under Section 164 CrPC at the earliest opportunity must get some credence if it is being materially corroborated at material points. It was noticed that not only the appellant (her father) but her mother too influenced the victim to turn hostile. Terming it as a scar on human relations, the Court said: “She could bear the physical pain but would be living with an injury to her soul. The biggest trauma would be that she was not even supported by her mother, and was expected to speak a lie before the Court.” Observing as aforesaid, the Court dismissed the appeal. [Baban Devji Rathod v. State of Maharashtra, 2019 SCC OnLine Bom 704, dated 10-04-2019]

Case BriefsHigh Courts

Meghalaya High Court: A Bench of Mohammad Yaqoob Mir, CJ, and H.S. Thangkhiew, J. dismissed an appeal filed against the trial court decision whereby the appellant was convicted for the offence punishable under Section 376 (punishment for rape) IPC.

The appellant was accused of committing rape upon the child-victim. Pertinent to note that he was acquitted by the trial court of the charge of rape levelled against him, in the first instance. Thereafter, the State appealed against his acquittal which was allowed by the High Court and the matter was remanded back for re-trial. After the conclusion of the re-trial, the appellant was convicted under Section 376 and sentenced accordingly. He challenged the decision of the trial court by filing the present appeal.

Senior Advocate S.P. Mahanta assisted by A. Thungwa, Advocate appeared for the appellant. Per contra, S. Sen Gupta, Additional Public Prosecutor represented the State. One of the many contentions raised by the appellant was that his case was prejudiced at the re-trial.

The High Court in reference to the aforesaid contention noted that it has no force as the High Court Judgment which ordered the re-trial was not challenged. It was also found that the appellant and his counsel actively participated in the proceedings at the re-trial and at no stage it was agitated that any rights of the appellant were infringed. The Court said: “It was nowhere mentioned that any of the witnesses during examination or cross-examination has made any improvement or has made any substantial deviation giving rise to any prejudice. Now, after the accused is convicted and sentenced, to contend that by re-trial gaps and lacunas have been filled up is an otiose theory only to be rejected.” On such and other incidental reasoning, the Court dismissed the appeal while upholding the trial court’s decision. [Small Phawa v. State of Meghalaya, Crl. A. No. 5 of 2016, dated 02-04-2019]

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National Human Rights Commission issues notice on 08-04-2019 to Maharashtra DGP and Mumbai Police Commissioner over the reported abduction, rape, and murder of a 9-year old girl.

NHRC, India has taken suo motu cognizance of a media report that a nine year old girl, who had gone missing on 04-04-2019 from the Nehru Nagar slum area of Juhu Mumbai was found murdered on the 06-04-2019. Her body was recovered from a septic tank of her locality. Reportedly, preliminary medical reports have confirmed that she was raped and murdered. According to the media report, a similar had happened in the J.J. Marg area about one and a half years ago.

The Commission has issued notices to the Director General of Police, Maharashtra and the Commissioner of Police, Mumbai calling for a detailed report in the matter within four weeks. The Commission also expects to have a report giving details of the mechanism adopted by the police authorities to address the issue more effectively.

It has observed that it seems the area lacks proper patrolling and monitoring by the police authorities. The culprit in the instant case, has a criminal background as he was reportedly arrested by the police in the year 2013. The local police officials are expected be vigilant about suspicious activities of these anti-social elements so that such heinous crimes could be averted. The Right to Life and Dignity of the innocent victim has been grossly violated.

According to the media report, carried on the 07-04-2019, the mother of the victim has stated that the girl had gone to get a packet of tea when she disappeared. A missing complaint was lodged with the details about the location and uniform she was wearing. The police authorities have arrested the suspect with whom the girl was last seen by some people. The alleged offender was also arrested in a criminal case, in the year 2013. The news report also states that a similar incident had taken place in J.J. Marg area about one and a half years ago when a 6 year old girl was killed and after investigation, the accused has been convicted by the Court.

[Dated: 08-04-2019]

NHRC

Case BriefsHigh Courts

Delhi High Court: Observing that the trial court, in the present case, did not seem to be alive to realities, Sanjeev Sachdeva, J. quashed an order whereby the accused-respondent (father of the prosecutrix) was discharged of the offence punishable under Sections 354 (outraging modesty of a woman) and 376(2)(f) (punishment for rape committed by a relative, guardian, teacher or person in position of trust or authority of a woman) IPC.

The trial court discharged the accused as he was blind and the allegations made against him were not specific. Also, the prosecutrix did not raise alarm when she had opportunities and did not file any complaint all this while. It is pertinent to note that the parents of the prosecutrix were divorced and as per the prosecutrix, she did not even remember as to when sexual assaults started to be committed upon her by her father. In the present complaint, she mentioned about incidents which happened when she was the age of 6 years old upto the age of 13-14 years old. She was 18 years old at the time of filing of the complaint. She mentioned that it was only when she was taught sex-education in her hostel, that she came to realise that she was being sexually assaulted. She then talked about it to her friend, who advised her about her options and thereafter they got in touch with an NGO.

The High Court noted that the prosecutrix had given a detailed description of the manner in which she was assaulted by the accused. It was observed: “A child who is subjected to sexual abuse and assault from a tender age of 6 and which assault continues till she is 14 years of age, would not even be aware that she is being abused or any offence is happening. The prosecutrix in her statement has stated that she was not aware of the abuse and became aware only when she grew up.”

Commenting on the flawed approach of the trial court, it was stated: “Trial court has erred in not appreciating that the accused is the father of the prosecutrix and was in a dominating position and keeping in the view the relationship, it would not be abnormal for the prosecutrix not to make a complaint against her own father. The reasoning given by the Trial Court is completely perverse and contrary to record.”

Satisfied that the allegations raised gave suspicion against the accused of having committed the alleged offence, the High Court allowed the present petition of the State which was filed after elucidating opinions from the Additional Public Prosecutor, the Chief Prosecutor, the Director of Prosecution, the Principal Secretary (Law and Justice) and also the Law Minister. The matter was remitted to the trial court for framing of appropriate charges against the appellant. [State (NCT of Delhi) v. X, 2019 SCC OnLine Del 7913, decided on 02-04-2019]

Case BriefsHigh Courts

Bombay High Court: Sadhana S. Jadhav, J. allowed an appeal filed against the decision of the trial court whereby the appellant was convicted for offences punishable under Section 376 IPC (punishment for rape) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (punishment for penetrative sexual assault).

The appellant was accused of committing rape upon the prosecutrix on pretext of marriage. He was tried and convicted by the trial court as aforesaid.

Arjun Rajput, counsel for the appellant assailed the judgment of the trial court. Per contra, S.S. Pednekar, Assistant Public Prosecutor appearing for the State supported the impugned judgment.

The High Court noted that evidence of the prosecutrix, on which appellant’s conviction was primarily based, did not inspire confidence. Also, several witnesses turned hostile. The Court stated, “witness may lie, but the circumstances will not lie.” As per the FIR, the appellant and prosecutrix had already made a plan to go out on the day of the alleged incident. It was observed, “The papers of investigation would indicate that the appellant was in love with the prosecutrix and that has led to initiation of criminal prosecution. The parents of the prosecutrix and that has led to initiation of criminal prosecution. The fact that the prosecutrix had voluntarily missed the classes and decided to accompany him would be sufficient to indicate that she was not forced to accompany the appellant.”

The Court noted further, “The appellant seemed to be so frustrated with the criminal prosecution that he made no efforts even to defend himself. In his statement under Section 313 CrPC he has only stated that he does not wish to speak about the incident. The papers of investigation would further indicate that the appellant felt betrayed by the prosecutrix. That it was a love affair between two youngsters, which had landed in criminal prosecution of a young boy.”

In such circumstances, the Court allowed the appeal and set aside the conviction and sentence awarded to the appellant by the trial court. [Gorakshya Arjun Mahakal v. State of Maharashtra, 2019 SCC OnLine Bom 520, dated 13-03-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Ashutosh Kumar, J. dismissed a petition filed by a contractual employee holding that there was no infirmity in an order rejecting renewal of his service, as there was a complaint pending against him.

Petitioner herein had applied for the post of Junior Engineer on contractual basis for one year, in the year 2008. He was offered the letter of appointment; but the terms of appointment were only for one year, which could have been renewed later subject to his rendering services to the satisfaction of the employer. Petitioner’s case was that his contract was subsequently renewed several times but in the present instance, the government had refused to renew his contract of service. Aggrieved thereby, the instant petition was filed.

The Court noted that reason for non-renewal of petitioner’s contract of service was that one Manju Kumari, who claimed herself to be his wife (denied by petitioner), had made a complaint of rape against him. The terms of appointment of petitioner clearly stated that if the services of a particular contractual employee are satisfactory and no complaint has been received against him, normally his contractual appointment shall be renewed.

The orders rejecting petitioner’s request for extending the period of contract, did not spell out the specific reason but it did indicate that entire facts were gone into by the employer and then a conscious decision was taken. Thus, it was held that there was no anomaly in the decision of Government, as facts of the complaint alleged by Manju Kumari indicated, at least till the matter is finally decided, an instance of moral turpitude.[Kaushal Kishore Bhagat v. State of Bihar, 2019 SCC OnLine Pat 269, Order dated 26-02-2019]

Case BriefsSupreme Court

Supreme Court: The bench of Abhay Manohar Sapre and Dinesh Maheshwari, JJ acquitted a man convicted for the offence of rape and said that the Session Court and the Patna High Court were not justified in convicting the appellant for an offence punishable under Section 376 IPC and sentenced him to undergo rigorous imprisonment for seven years.

Factual Background:

Prosecutrix alleged that the appellant, December 14, 1997, entered into her house when she was alone and threatened her by showing pistol and committed rape on her. The prosecution examined, prosecutrix’s husband and a neighbour, apart from examining the prosecutrix herself. Both the Courts below based their conclusions on the evidence of the aforementioned 3 witnesses.

Grounds for acquittal:

  • the complainant was not examined by the Doctor after the alleged incident.
  • in absence of any medical examination done, the prosecution did not examine any doctor in the trial in support of their case;
  • it was not disputed that similar type of complaints were being made in past by the complainant ag and such complaints were later found false;
  • it was also not disputed that there was enmity between the appellant and the husband of the prosecutrix, due to which their relations were not cordial;
  • it had also come in evidence that the prosecutrix was in habit of implicating all the persons by making wild allegations of such nature against those with whom she or/and her husband were having any kind of disputes;
  • there was no eye witness to the alleged incident and the one, who was cited as witness, was a chance witness on whose testimony, a charge of rape could not be established;
  • so far as the husband of the complainant, is concerned, he admitted that he was away and returned to village the next day morning of the incident.

Ruling:

Noticing that there was no evidence adduced by the prosecution to prove the commission of the offence of rape by the appellant on the prosecutrix and the evidence adduced was not sufficient to prove the case of rape against the appellant, Court set the accused free.

[Ganga Prasad Mahto v. State of Bihar, 2019 SCC OnLine SC 417, decided on 26.03.2019]

Case BriefsHigh Courts

Sikkim High Court: A Bench of Vijay Kumar Bist, C.J., and Meenakshi Madan Rai, J., dismissed an application filed against the judgment of the Special Judge (POCSO) whereby the appellant was convicted for the offences punishable under various sections of the Protection of Children from Sexual Offences Act, 2012 and the Penal Code for raping a minor girl.

It was alleged that the appellant raped the victim in a jungle near her school when she went there for collecting fruits. The victim was aged 13 years at the time of the incident. The appellant was tried, convicted and sentenced for raping the victim by the trial court. Aggrieved thereby, he preferred the present appeal.

Gulshan Lama, Advocate (Legal Aid Counsel) for the appellant relied on the statement of doctors to challenge the impugned judgment. Per contra, Thimlay Dorjee Bhutia, Additional Public Prosecutor supported the impugned judgment.

The High Court noted that the Forensic Laboratory Report stated that human semen was found on victim’s underwear. Considering the report with statements of the victim and her friend, the Court found the victim’s statement trustworthy.

Explaining the law, the Court observed, “Section 29 of the POCSO Act provides that where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3,5,7 and 9 of the POCSO Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved. In this case, the appellant failed to prove that he has not committed the offence as alleged by the minor victim. Section 30 of the POCSO Act provides that the accused has to establish beyond reasonable doubt that had no culpable mental state.”

Stating that the appellant made no effort to rebut the presumption of culpable mental state, the Court dismissed the appeal. [Lakpa Dorjee Tamang v. State of Sikkim, 2019 SCC OnLine Sikk 7, dated 21-2-2019]

Hot Off The PressNews

Pollachi Sexual Assault Case: In the barbarous and shameful act that took place in the State of Tamil Nadu the first FIR that was registered by one of the Survivor was on February 24, 2019 and the battle for the same has been continuing.

Survivors’ Tale:

The survivor while giving the detailed account of the incident as stated by “The Print“,

“the survivor recollects that she received a call from one Sabarirajan, alias Riswandh, whom she knew. Sabarirajan called her over for lunch at Unjavelampatti area of Pollachi but when she got there, he allegedly asked her to accompany him in a car. The survivor has alleged that the three other accused — Thirunavukkarasu, Vasanthakumar and Satish — were already in the car.

Her account states that she trusted Sabarirajan and entered the car but the men drove her to a secluded place near Kalpana mills in Pollachi, where Satish forcibly removed her clothes while the other three filmed the act. They allegedly threatened her, extorted her and ordered her to submit to their “desires”, which she flatly refused. At this time, they snatched her gold chain and abandoned her, before driving off.

The accused then allegedly called the woman over the next few days demanding money by blackmailing that they would release the video. Unable to bear the torture, the survivor finally informed her parents who helped her file a police complaint.”

“The four accused — Sabarirajan, Thirunavukkarasu, Sathish and Vasanthkumar — have now been booked under sections 354A (sexual harassment), 354B (assault or use of criminal force against woman with intent to disrobe), and 394 (robbery) of the IPC; section 66E of the IT Act (violation of privacy); and section 4 of the Tamil Nadu Prohibition of Sexual Harassment of Women Act (sexual harassment).”

It has been stated that this racket has been continuing the shameful act since a very long time.

Madras High Court has ordered for an amount of Rs 25 lakhs to be paid by the Tamil Nadu Government due to the revelation the name of the survivor on several occasions. Court has also directed disciplinary action against the officials.

The Court directed the centre and state to submit a status report on its 2012 order to set up a “One Stop Centre” for dealing with rape cases and counselling of survivors.

[Source: Print & NDTV]

Case BriefsForeign Courts

Court of Appeal of Tanzania: The Bench of K.M. Mussa, S.A. Lila and R.K.Mkuye, JJ., decided in an appeal concerning the conviction of the appellant for the offence of “Rape” contrary to Sections 130(1) (2) (e) and 131 (1) of the Penal Code, Cap 16 R.E. 2002.

Appellant was sentenced to life imprisonment and for the said his appeal to the High Court was unsuccessful. Hence, the second appeal.

In the evening of the fateful day, the appellant went to Beatrice Ishiaka’s (PW1) home and took PW1 together with Pascal Mode to the orange farm to harvest oranges. While at the farm the appellant ordered PW1 to sit down and get the money. However, the appellant raped her. Thereafter, PW1 went home and informed her grandmother (PW3) to have been raped by the appellant. The matter was reported to the relevant authorities which led to the appellant’s arrest.

Appellant denied to have raped PW1 and lodged a memorandum of appeal comprising 4 grounds of appeal.

The Court of Appeal while reaching to a conclusion went through the grounds of appeal, facts and the material on record in the most careful manner and stated that

“Court is required to be cautious and very slow to disturb the concurrent findings of facts of the two courts below. The Court could only do that if there are completely misapprehensions of the substance, nature and quality of evidence which result into fair conviction.”

Further, the Court on examining the grounds of appeal mentioned by the appellant dealt with only ground number 3 and 4 that touched the “credibility of witnesses” and the “standard of proof”.

Placing reliance on the case of Aloyce Mgovano v. Republic, Criminal Appeal No. 182 of 2011; Court dealt with “credibility of witnesses”. In the said case, Court also cited Shabani Daudi v. Republic, Criminal Appeal No. 28 of 2000; wherein it was stated that,

Credibility of a witness can also be determined in two other ways: one, when assessing the coherence of the testimony of the witness. Two when the testimony of that witness is considered in relation with the evidence of other witnesses, including that of the accused person. In these two other occasions the credibility of a witness can be determined even by a second appellate court when examining the findings of the first appellate court.”

Court stated that evidence of PW1 was taken without the oath. This is a situation where corroboration was required. It is settled law that unsworn evidence most often requires corroboration. Unfortunately, Pascal Mode who was with PW1 did not testify. PW2 and PW3 cannot be taken to corroborate her evidence as their evidence was mere hearsay as regards to who raped PW1. It was also observed that even if PW 3 saw some features suggesting that PW 1 was raped, she could not be in a position to know who did it.

Hence, the Court concluded that, unfortunately, no reasons for failure to call Pascal were given as he was a material witness in the present case which led the Court to agree with appellant and merit was found in the stated grounds. Appeal was allowed and conviction quashed and set aside, with the release of the appellant. [Raphael Mhando v. Republic, 2019 SCC OnLine TZCA 1, Order dated 01-03-2019]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. AK Sikri, SA Nazeer and MR Shah, JJ has acquitted 6 death row convicts and has directed reinvestigation in a crime that was committed in June, 2003.

The Court was hearing the case where 5 people were brutally killed and a woman was raped. However, the accused were falsely implicated in the matter as they were all nomadic tribes coming from the lower strata of the society and are very poor labourers.

Lapse on part of investigating agency:

Noticing that an injured prime witness identified four named persons from the album of the photographs of notorious criminals but nothing was  on record whether those four persons were arrested or not or any further investigation was carried out with respect to those four persons, the Court said that there was a serious lapse on the part of the investigating agency, which has affected the fair investigation and fair trial, and therefore, the fundamental rights of the accused guaranteed under Articles 20 & 21 of the Constitution of India have been violated. It said:

“The benefit of the lapse in investigation and/or unfair investigation cannot be permitted to go to the persons who are real culprits and in fact who committed the offence.”

The Court, hence, directed the Chief Secretary, Home Department, State of Maharashtra to:

  • look into the matter and identify such erring officers/officials responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, real culprits are out of the clutches of law and because of whose lapses the case has resulted into acquittal in a case where five persons were killed brutally and one lady was subjected to even rape.
  • take departmental action against those erring officers/officials, if those officers/officials are still in service. The instant direction shall be given effect to within a period three months from the date of the order.

The Court also directed the prosecution to conduct further investigation under Section 173(8) against those four persons identified by the injured prime witness so that real culprits should not go unpunished.

Compensation to falsely implicated persons:

The Court also took note of the statement of a psychiatrist who had examined one of the accused who was subsequently found to be a juvenile. The juvenile had clearly opined that he has lived under sub-human conditions for several years. He was kept in isolation in solitary confinement with very restricted human contact and under perpetual fear of death. He was only allowed to meet his mother, and that too only infrequently. He was not even allowed to mix with other prisoners. Therefore, all the accused remained under constant stress and in the perpetual fear of death. As they were facing the death penalty, they might not have availed any other facilities of parole, furlon etc. All of them who were between the age of 25-30 years (and one of the accused was a juvenile) have lost their valuable years of their life in jail. Their family members have also suffered. Considering the aforesaid facts and circumstances, the Court directed:

“The State of Maharashtra to pay a sum of Rs.5,00,000/- to each of the accused by way of compensation, to be deposited by the State with the learned Sessions Court within a period of four weeks from today and on such deposit, the same be paid to the concerned accused on proper identification.”

[Ankush Maruti Shinde v. State of Maharashtra, 2019 SCC OnLine SC 317, decided on 05.03.2019]