Rape

Case BriefsHigh Courts

Kerala High Court: Alexander Thomas, J. disposed of a matter wherein a complaint was lodged against the petitioner accusing of committing rape and cheating.

In the present case, the complainant, a married lady whose divorce proceedings were still underway had advertised in the matrimonial column of a newspaper seeking a response from interested persons in respect of her marriage proposal. The petitioner responded to the same by agreeing to marry the complainant. Based on the assurance, both the parties shared an intimate relationship and indulged in sexual intercourse. However, later, the petitioner showed disinterest in the marriage proposal.

It has been stated by the complainant that the petitioner had taken Rs 2 lakhs from her and also her gold ornaments coming to 35 sovereigns and that she has been cheated and that she had given her consent to have sexual intercourse with the petitioner only on the basis of the assurance that he would marry her and that the petitioner has committed the abovesaid offences.

The complainant was filed under Section 376 of the Penal Code, 1860.

The Counsel representing the petitioner, V. John Mani, submitted that the complainant had suppressed facts from the petitioner by seeking marriage from the petitioner despite being a married woman at that point of time as the divorce proceedings were still underway and thus, it was the petitioner who had been cheated. Further, it was submitted that there was a falsification of facts when the complainant stated that the petitioner had borrowed money and gold ornaments, since, the complainant had extracted amount more than five lakhs from the petitioner.

In addition to the above, it was stated that the arrest and detention of the petitioner is absolutely illegal and ultra vires and that going by the admitted allegations in the FIS, the Police has committed a serious illegality in arresting the petitioner and that the arrest and detention of the petitioner is against the binding decisions of the Supreme Court and various High Courts in respect of the legal position relating to the lawful arrest of the accused persons in such cases.

The public prosecutor for the state, T.R. Renjith contended that the Police was given 3 days time for custodial interrogation of the petitioner, after his remand and that the petitioner has not co-operated with the investigating officer in respect of the recovery of the gold ornaments alleged to have been taken by the petitioner from the lady and that the petitioner is likely to threaten or intimidate the complainant, if he is let out on bail.

High Court upon perusal of the facts and circumstances of the case expressed its dissatisfaction with the police authorities arresting the petitioner for the period of time in a case wherein the complainant herself had requested for marriage proposals despite not being lawfully declared as divorced from the former marriage.

Adding to the above, Court stated that, “the petitioner has got a specific case that the lady has suppressed the fact that she was twice married and that though she had secured divorce in respect of her first marital relationship, divorce proceedings are still pending in respect of her second marital relationship etc. The Police is duty-bound to investigate the crucial aspects as to whether the lady is twice married as alleged by the petitioner. If that be so, it is for the Police authorities to take serious note of such aspects which has been suppressed by the lady defacto complainant in her FIS.”

Thus, bail was granted to the petitioner, however with certain conditions of not committing any offence while on bail, not interacting with the complainant or tampering with evidence. [Prasanth Nelson v. State of Kerala, Bail Appl. No. 6502 of 2019 decided on 18-09-2019]

Case BriefsHigh Courts

Calcutta High Court: Rajarshi Bhardwaj, J., addressed an appeal arising out of a judgment and order of conviction passed by the Additional District and Sessions Judge sentencing the appellant to suffer rigorous imprisonment and fine along with the payment of compensation to the victim for commission of offence punishable under Sections 376 and 511 of Penal Code, 1860.

The present matter pertains to the contentions and facts that the victim during school hours went to use the toilet and at that time the appellant entered into the toilet and committed rape upon the victim girl.

A complaint was filed in regard to the stated prosecution case after which the officer-in-charge initiated the case under Section 376 (2) of the Penal Code, 1860. The accused was arrested and produced before the Court. Charges were framed against the accused under Sections 376 and 511 of the Penal Code.

Tapan Dutta Gupta, Counsel appearing on behalf of the appellant submitted that the case was concocted out of political rivalry and was established by the defence.

Advocate for the State submitted that the version of the victim has been corroborated by other witnesses, the appeal is liable to be dismissed. Some of the statements of the prosecution witnesses are mentioned below in order to understand the victim’s stand better:

  • PW-1, father of the victim stated that on returning from school, victim girl told him that in the school she had gone to attend her nature’s call and that was the time when the accused entered into the latrine and forcibly committed rape upon her.
  • PW-2, Victim herself stated that on the fateful day she went to the latrine of the school accompanied by her elder sister. She forgot to lock the room of the toilet from inside and at that time the accused entered into the toilet room and pressed his penis in her private part and when she started crying, the accused fled away from the spot.
  • PW-5, the Medical officer, stated that the victim girl did not face any intercourse, though, during the examination, swelling was found over both vulva present and reddish discolouration inside labia minora. Such type of injury may be caused if any person tries to insert his penis in the vagina of a girl aged about 6 years.

Therefore, it appears from the evidence on record that the victim girl was a minor on the date of incident.

High Court stated that, although it has been desperately argued that the appellant was not present at the time of the incident, no such plea was raised nor any evidence led to probabilise, such plea of alibi on behalf of the appellant during the trial.

Hence, in view of the above discussion, appellant is found guilty of the offence punishable under Sections 376 and 511 of the penal Code, 1860 and further sentenced to suffer rigorous imprisonment for 5 years and to pay fine of Rs 4,000 only, in default to suffer simple imprisonment for 6 months is modified to the extent that the appellant was sentenced to suffer rigorous imprisonment of 5 years and fine of Rs 4,000 in default to suffer simple imprisonment for another 1 month.

Accordingly, the appeal is dismissed.[Pratap Dolai v. State of West Bengal, 2019 SCC OnLine Cal 2306, decided on 06-09-2019]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Pradeep Nandrajog, CJ and Bharati Dangre, J. disposed of clubbed appeals arising out of the same criminal matter, and convicted the accused of the offence of rape punishable under Section 376 IPC.

The accused was alleged to have taken away and raped the prosecutrix, who was a minor at the time of the commission of offence. He was convicted by the trial court for offences under Sections 363, 366-A and 376 IPC. On appeal to Sessions Court, his conviction under Section 376 was reversed, however, remaining part of the trial court order was confirmed. The State and the accused, both, filed appeals before the High Court.

On facts of the case, the High Court held that the offence under Sections 363 and 366-A IPC were not proved against the accused. However, since the prosecutrix was 14 years of age at the time of commission of offence, her consent to the sexual act does not matter. His acquittal by Sessions Court for the offence punishable under Section 376 IPC was thus reversed.

Next, the Court considered that at the time of commission of offence, the accused was about 16 years of age — a juvenile. On the aspect of sentencing, it was observed:

”At the time when the accused and the prosecutrix were in love and did the act which, to the misfortune of the accused, attracted the penal laws, his age was 16 years and 2 months. The Juvenile Justice (Care and Protection of Children) Act, 2010 followed by the Act of 2015 had not come into force. Under the two Acts, the age of juvenility was enhanced from 16 years to 18 years. In the decision reported as Hari Ram v. State of Rajasthan, (2009) 13 SCC 211, even in pending matters before the trial court or in the appeal the benefit of said acts has to be accorded to the accused and thus deciding the three appeals today, it would be our duty to extend the benefit of Juvenile Justice Act, 2010 and 2015 to the accused. As per clause (g) of sub-Section (1) of Section 18 of the Juvenile Justice Act, the accused can, at best, be directed to be sent to Special Home for such period not exceeding three years so that the Accused can be reformed. It would be futile, therefore, to pass an order as contemplated by law for the reasons for the year 2019, the age of the accused is 38 years.”

Accordingly, the accused was convicted as aforesaid but no sentence was imposed on him since as of today, the accused was no longer a Juvenile. The appeals were disposed of accordingly.[State of Maharashtra v. Hemant Ashokkumar Mittal, 2019 SCC OnLine Bom 1670, decided on 22-08-2019]

Case BriefsHigh Courts

Sikkim High Court: The Division Bench comprising of Vijai Kumar Bist, CJ and Bhaskar Raj Pradhan, J. partly allowed an appeal filed under Section 374 (2) of CrPC.

The above-stated appeal was directed against the judgment and order passed by the Court of the Fast Track Judge, whereby the Court convicted the accused/appellant Sangay Bhutia under Sections 376(1), 323 and 341 of the Penal Code, 1860.

According to the prosecution story, as stated, a report was lodged by the husband (PW 2) of the victim stating that while his wife was returning to her house from her duty, Sangay Bhutia suddenly appeared from the back and grabbed her from behind and started assaulting her on the head when she shouted for help. Following it, she became unconscious and when she regained consciousness she found that the accused already ran away from the spot. Thereafter, the victim went to her house and told the same to her husband.

Case was committed to the Court of Sessions Judge and the charges against the accused were framed under Sections 323, 341 and 376 of Penal Code, 1860. Thereafter, accused/appellant was also examined by the Court where he denied all the allegations against him.

Learned Counsel for the appellant Manita Pradhan, submitted that, the Court below has committed grave error both on facts and law in passing the impugned judgment. Adding to her submission, she stated that the trial judge failed to appreciate the fact that the victim never told PW2 her husband that after she regained consciousness she found her trousers and underwear been pulled down while she was in a state of unconsciousness.

Trial Court also failed to appreciate the fact that the victim admitted that she cannot say for sure if she had been raped by the appellant/accused while she was unconscious. Allegation of her being raped is not corroborated by any evidence or witnesses and in absence of any corroboration, suspicion of victim cannot be equated with proof and cannot form basis of conviction.

Counsel for the appellant relied on the case of Ramdas v. State of Maharashtra, (2007) 2 SCC 170, wherein it was held that,

“Conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the Court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which casts a shadow of doubt over her veracity.”

The High Court after carefully noting the submissions of the parties and considering the facts and circumstances of the case concluded the matter by stating that,

“It is true that the sole testimony of the victim is sufficient to convict an accused. It is absolutely correct that no self-respecting woman would falsely state that she had been raped.”

But, the Court is supposed to evaluate the evidence of the victim more carefully if medical evidence does not support the commission of sexual assault on the victim. In the present case, the victim’s statement implies that she was not sure of whether she was rape or not and neither the evidence of her husband PW 2 mentioned the same. Medical report also does not suggest that the victim was raped.

Therefore, the appellant is acquitted from the charge under Section 376(1) along with the sentence being set aside, though the Court made it clear that it would not mean that the prosecution case is totally false.

Thus, the charges under Sections 323 and 341 of Penal Code, 1860 were proved and the finding of the trial court in that regard stands affirmed. [Sangay Bhutia v. State of Sikkim, 2019 SCC OnLine Sikk 121, decided on 23-08-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Gurvinder Singh Gill, J. made absolute the interim application for bail in a matrimonial case.

An application for anticipatory bail was made by the petitioner for the offence registered under Sections 323, 325, 326, 406, 506, 498-A, 34 of the Penal Code.

The facts of the case were that FIR was registered at the instance of the petitioner’s wife wherein it was alleged that she was married to the petitioner and had a child from the wedlock. The petitioner and his family used to harass and beat her for no reason. It was also submitted that in-laws of the petitioner had retained all her jewellery articles.

Gautam Dutt, counsel for the petitioner submitted that though there was some matrimonial discord between the parties the complainant herself caused injuries to the petitioner. It was further submitted that complainant is all out to wreak vengeance and went to the extent of leveling allegations of rape against the petitioner’s father which upon inquiry by police were found to be false.

Aditi Girdhar, counsel for the state submitted that one of the injuries found on the person of the complainant has been opined to be grievous injury attracting an offence punishable under Section 325 IPC and that in these circumstances since the allegations stand substantiated, no case for grant of anticipatory bail was made out. It was informed that the alleged jewellery articles, as well as car, were recovered.

The court opined that as the petitioner had already joined the investigation and had got the articles of the dowry and thus petition was accepted and the interim directions by the court were made absolute subject to the condition that petitioner would appear before investigating officer and when called upon to do so and cooperate with the investigating officer.[Nitin Yadav v. State of Haryana, 2019 SCC OnLine P&H 1480, decided on 19-08-2019]

Bail Application
Case BriefsHigh Courts

Himachal Pradesh High Court: Vivek Singh Thakur, J. contemplated a petition filed under Section 482 of CrPC, where the petitioner arrived at a compromise with the respondent for quashing of the FIR filed under Sections 279 and 337 of IPC along with allegations under Motor Vehicle Act, 1988.

Factual matrix of the case was that the complainant-respondent was crossing the road and he was hit by a motorcycle which was driven by the petitioner. The complainant fell unconscious and he did not know the main cause of the accident. He subsequently lodged an FIR on the basis of the information which was supplied by the people present at the site of the accident. The contention of the complainant was that it is not known to him that how the accident had occurred and as to whether petitioner was at fault or not and that after the accident petitioner along with his family had approached him in his village and had taken care of his injuries and further that petitioner was a young graduate engineer and even if had it been fault on his part, he would have forgiven him, as he was feeling guilty for hitting him with his Motor Cycle, therefore, he did not intend to continue criminal proceedings against him and had prayed for compounding the case.

The submissions of the petitioner had also been made he had stated that he was feeling guilty for hitting the complainant and therefore had repentance for the same and had apologized to the complainant, who had agreed to forgive him. He undertook to be more careful in the future. He further deposed that at the time of the accident he was not in possession of documents of the vehicle as well as driving license, but now he possesses the same. He had also stated that he has deposed in the Court out of his free will, consent and without any coercion, pressure or threat.

But the main issue in the instant petition was that the State contended that accused was not entitled to invoke inherent jurisdiction of this Court to exercise its power on the basis of compromise arrived at between the parties with respect to an offence not compoundable under Section 320 CrPC, reliance was placed on Gian Singh v. State of Punjab, (2012) 10 SCC 303, where the Supreme Court explained the power of the High Courts under Section 482 CrPC. and had held that, “these powers are to be exercised to secure the ends of justice or to prevent abuse of process of any Court and these powers can be exercised to quash criminal proceedings or complaint or FIR in appropriate cases where offender and victim have settled their dispute and for that purpose no definite category of offence can be prescribed.” However, it was also observed that Courts must have due regard to nature and gravity of the crime and criminal proceedings in heinous and serious offences or offence like murder, rape and dacoity, etc. should not be quashed despite victim or victim family have settled the dispute with the offender. Jurisdiction vested in High Court under Section 482 CrPC is held to be exercisable for quashing criminal proceedings in cases having overwhelming and predominately civil flavor particularly offences arising from commercial, financial, mercantile, civil partnership, or such like transactions, or even offences arising out of matrimony relating to dowry, etc., It was also held that no category or cases for this purpose could be prescribed and each case has to be dealt with on its own merit but it is also clarified that this power does not extend to crimes against society.

The Court observed that though Section 279 is not compoundable under Section 320 of CrPC, however the contentions in Gian Singh’s case where the power of the High Court under Section 482 CrPC was not inhibited by the provisions of Section 320. the Court further observed that the type of offence dealt in the instant petition was not expressly barred or prohibited by the general view for compounding hence, the petition was allowed. [Rohit v. State of Himachal Pradesh, 2019 SCC OnLine HP 1333, decided on 22-08-2019]

Hot Off The PressNews

Supreme Court: The bench of Arun Mishra and MR Shah, JJ has refused to quash the charges against Tarun Tejpal, former editor-in-chief of Tehelka Magazine, in the 2013 sexual assault case registered by his former junior colleague. The Court also directed that the trial is to be concluded in a period of six months.

The Court passed the order on Tejpal’s plea which quashing of charges against him framed by a trial court in Goa. Claiming innocence, Vikas Singh, senior lawyer and former Additional Solicitor General appeared for Tarun Tejpal in the case.

Tejpal, a veteran journalist, was accused of sexual assault by a female colleague in November 2013. He was arrested on November 30, 2013, and is currently on bail. On September 29, 2017, a trial court in Goa charged Tejpal under sections 376(2) (Rape), 354 A (Sexual harassment) and 342 (wrongful confinement).

(Source: ANI)

Case BriefsHigh Courts

Orissa High Court: S.K. Sahoo, J. dismissed a criminal appeal for the acquittal of the appellant under Section 376 of the Penal Code, 1860.

The victim in the present case was forcibly raped by the appellant on the pretext that he will marry her. The appellant visited the victim on many occasions and raped her and would give her the assurance of marriage. Even after the victim became pregnant, the appellant continued raping her. The news of the pregnancy of the victim spread in the village and the appellant confessed his guilt before the uncles of the victim. He also admitted to having impregnated the victim in presence of the entire village post which, on 11-04-2011, she lodged an FIR. The trial Court acquitted the appellant on 28-06-2012 under Section 417 of the Penal Code but found him guilty under section 376 and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of rupees five thousand.

The appellant challenged this judgment and order of conviction on the grounds that there was a delay in filing the FIR by the victim and the prosecution has not satisfactorily explained this delay. It was further contended that there is no hard evidence to prove the age of the victim, and if the age of the victim is held to be more than sixteen years then it can be said that she was a consenting party.

Priyabrata Tripathy, Additional Standing Counsel for the victim, submitted that delay in lodging the FIR in a rape case cannot be a ground to hold the entire prosecution case suspicious. He argued that the victim remained silent an account of assurance of marriage given by the appellant and when the victim disclosed about her pregnancy, an FIR was lodged. Further, there is no infirmity in the evidence of the victim.

The Court held that, “the law is well settled that delay in lodging the FIR in an offence of rape is a normal phenomenon as the FIR is lodged after deliberation. It takes some time to overcome the trauma suffered, the agony and anguish that create the turbulence in the mind of the victim, to muster the courage to expose one in a conservative social media, to acquire the psychological inner strength to undertake a legal battle against the culprit.”

Secondly, the victim stated her age to be fifteen years at the time of her deposition, which was recorded on 13-08-2011. She stated that the occurrence last took place in 2010. No evidence was brought out in the cross-examination to challenge her age. The doctor who conducted ossification test of the victim stated that on the basis of the physical findings, dental examination and development of secondary sexual characteristics and menstrual history and ossification test, that the age of the victim to be more than fourteen years and less than sixteen years. Therefore, the question of the victim being a consenting party was not taken into account.

The appellant also submitted that he has been in judicial custody since 14-04-2011 and he was never released on bail either during pendency of the trial or during pendency of this appeal and therefore, he has already undergone the substantive sentence of eight years and three months and therefore, the substantive sentence should be reduced to the period already undergone.

The Court upheld the order of conviction of the appellant under Section 376 of the Penal Code, 1860 but reduced the substantive sentence from rigorous imprisonment for ten years to the period already undergone. In view of the enactment of the Odisha Victim Compensation Scheme, 2012, keeping in view the age of the victim at the time of occurrence and the nature and gravity of the offence committed and the family background, the Court recommend the case to District Legal Services Authority, to examine the case of the victim for grant of compensation under the Scheme.

The Criminal Appeal was dismissed and the appellant was released from jail custody.[Budha v. State of Odisha, 2019 SCC OnLine Ori 262, decided on 01-08-2019]

Case Briefs

Supreme Court: The bench of Deepak Gupta and Aniruddha Bose, JJ has directed the State of Uttar Pradesh to airlift the Unnao rape survivor by air-ambulance to Delhi and transfer her to AIIMS today itself after consulting with the Doctors at Lucknow.

The counsel appearing for the family members of the survivor had submitted before the Court that since the survivor has developed Pneumonia and hence, she should be shifted to AIIMS.

Regarding the lawyer of the survivor, who is in critical condition, the Court said,

“In case the family members of the lawyer of the victim make a similar request to the State authorities at 5 Lucknow by 3.00 p.m. today, he shall also be airlifted along with the victim, following the same procedure as laid down for the victim.”

On July 28, a truck rammed into the vehicle in which the Unnao rape survivor, her counsel and two aunts were travelling to Raebareli. While she and her lawyer sustained grievous injuries, her aunts were killed on the spot.

The Uttar Pradesh Police filed a case of murder against BJP MLA Kuldeep Singh Sengar and nine others in connection with the accident. Meanwhile, the BJP has expelled MLA Kuldeep Singh Sengar amidst the controversy.

[IN RE ALARMING RISE IN THE NUMBER OF REPORTED CHILD RAPE INCIDENTS, Suo Motu Writ Petition (Crl.) No(s).1/2019, order dated 05.08.2019]

Also read:

Unnao rape case: All cases transferred to Delhi; Probe to be completed within maximum 14 days

Case BriefsHigh Courts

Bombay High Court: Rohit B. Deo, J. allowed a criminal appeal filed against the judgment of the Additional Sessions Judge whereby the appellant was convicted for the offence of committing rape repeatedly on the same woman punishable under Section 376(1)(n) IPC along with the offence punishable under Section 506 (criminal intimidation).

The case against the appellant was that he abducted the victim and subjected her to forcible intercourse multiple times. He was convicted as aforesaid and sentenced to suffer rigorous imprisonment for a term of 10 years. Aggrieved thereby, the appellant filed the present appeal.

F.N. Haidri, Advocate representing the appellant contended that even if it is assumed that there was sexual intercourse, it was consensual. Per contra, TA Mirza, APP appearing for the State submitted that the defence of consent must be rejected because the statutory presumption under Section 114-A of the Evidence Act is not rebutted.

On perusal, the High Court was satisfied that evidence of the victim was not of such sterling quality as would obviate the need to seek corroboration. Perusing further the facts and the medical and forensic evidence, the Court was of the opinion that there were many holes grey areas and it would be absolutely unsafe to base the conviction on victim’s testimony which was not corroborated. As far as defence of consent was concerned, the Court observed that the prosecution failed to prove the foundational facts. It was said: “The legislative intent is not that the accused must disprove the absence of consent beyond a reasonable doubt. It would not be necessary for the accused to adduce direct evidence to prove that there was consent or to disprove the absence of consent. The accused can rely on material brought on record in the cross-examination of the victim and the evidence of the other prosecution witnesses. In the present case, enough material is brought on record in the cross-examination of the victim and the evidence of the other prosecution witnesses to lend credibility to the alternate defence theory that the sex was consensual.”

The Court held that the prosecution failed to prove the offence beyond reasonable doubt and the gulf between suspicion and proof was not bridged. Consequently, the Court acquitted the appellant of all the offence and directed his release. [Mohan v. State of Maharashtra, 2019 SCC OnLine Bom 1407, decided on 30-07-2019]

Case BriefsSupreme Court

Supreme Court: In a ghastly case involving rape and murder of 2 children, the 3-judge bench of RF Nariman, Surya Kant and Sanjiv Khanna, JJ upheld the conviction of the accused but gave 2:1 verdict on quantum of punishment.

FACTUAL BACKGROUND

  • In October 2010, accused Mohanakrishnan & Manoharan kidnapped a 10-year-old girl & her 7-year-old brother while they were preparing to leave for school.
  • The children were taken to a remote area and rape was committed on the girl.
  • Attempt was made to kill both the children by feeding them poisonous cow dung powder mixed in milk. However, the children took only a small amount of the milk and didn’t die.
  • The children were then thrown away alive in the Parambikulam-Axhiyar Project canal.
  • Both the accused were arrested but Mohanakrishnan was later shot dead in an encounter.

QUANTUM OF PUNISHMENT

MAJORITY VIEW BY NARIMAN AND SURYA KANT, JJ

Considering the serious nature of the crime, Justice Nariman, writing for himself and Surya Kant, J said that there is no doubt that aggravated penetrative sexual assault was committed on the 10 year old girl by more than one person. The 10 year old girl child (who was below 12 years of age) would fall within Section 5 (m) of the POCSO 48 Act. He further said,

“There can be no doubt that today’s judgment is in keeping with the legislature’s realisation that such crimes are on the rise and must be dealt with severely.”

It was noticed that the crime in the case at hand was extremely shocking as a young 10 year old girl has first been horribly gangraped after which she and her brother aged 7 years were done away with while they were conscious by throwing them into a canal which caused their death by drowning. The Court also noticed that no remorse has been shown by the Appellant at all and given the nature of the crime it is unlikely that the Appellant, if set free, would not be capable of committing such a crime yet again.

The Court, hence, confirmed the death sentence imposed on the appellant.

MINORITY VIEW BY KHANNA, J

While Khanna, J said that he would uphold the appellant’s conviction, he did not think that this case was fit for a death penalty and would, hence, commute it to imprisonment for life i.e. till his natural life with a stipulation that the appellant would not be entitled to remission under Sections 432 and 433 of the Code of Criminal Procedure, 1973.

Noticing that the appellant had confessed to his crime and that confession is a ground to mitigate the sentence, Khanna, J said,

“to confess to such acts of crime and misdeeds before all and everyone, including the Magistrate could only mean that the appellant had felt shame, remorse and alienation from the society.”

He also noticed that the appellant had retracted the last part of his confession as to his involvement in sexual assault, rape and throwing the children in the canal and said that the retraction does, however, substantially reiterate and accept the first portion of the confession, including his presence in the van, but states that the appellant had not raped the girl and had remained standing.

He said,

“The retraction by itself, I would observe, should not be treated as absence of remorse or repentance, albeit an afterthought or on advice propelled by fear that the appellant in view of his admission may face the gallows, and that the earlier confession made seeking forgiveness would be the cause of his death.”

Khanna, J also took note of the fact that the appellant was 23 years of age at the time of occurrence and he belongs to a poor family. The facts that he has aged parents and is a first-time offender were also taken into consideration.

He, hence, held,

“the present case does not fall under the category of ‘rarest of rare’ case i.e. there is no alternative but to impose death sentence. It would fall within the special category of cases, where the appellant should be directed to suffer sentence for life i.e. till his natural death, without remission/commutation under Sections 432 and 433 Cr.P.C.”

[Manoharan v. State, 2019 SCC OnLine SC 951, decided on 01.08.2019]

Hot Off The PressNews

Supreme Court: The Court has asked CBI to investigate within 7 days the mysterious case of the accident in which the Unnao rape survivor was seriously injured along with her lawyer while her two aunts were killed in Rae Bareli on Sunday. The investigation is to be conducted by Secretary General under supervision of sitting SC judge nominated by CJI, to ascertain whether there was any lapse/negligence by registry officials in delay in processing letter of Unnao rape victim’s mother to CJI.

Ranjan Gogoi, CJ gave the direction to the agency after dismissing Solicitor General of India Tushar Mehta’s plea for a month’s time for completing the probe. CJI said,

 “A month? Probe should be completed within 7 days in the accident case, however, as an exception, CBI can take another week, but in no circumstance shall the probe extend beyond a fortnight.“

The Court has transferred the trial of all the cases related to Unnao rape incident from Uttar Pradesh to Delhi and the designated judge in Delhi will commence the trial on day-to-day basis and complete the trial within 45 days.

As an interim measure, the Court has directed the UP government to pay Rs 25 lakh as compensation to the victim and also directed that security & protection be granted to the victim, her lawyer, mother of the victim, the four siblings of the victim, her uncle, and immediate family members in the village in Unnao.

Earlier in the day, the CJI ordered the CBI to present the status of the investigations after the agency was given charge of the probe into the accident and the FIR that included murder charges against rape accused and BJP MLA Kuldeep Sengar.
When the SG said the Investigating Officer was out of station and sought time till tomorrow morning for the agency to submit a report, the CJI dismissed it asking CBI to depute some ‘responsible’ official who can gather the information over phone and present it to the court. CBI Joint Director Sampat Meena, a woman officer, appeared before the bench and gave the status of the probe into the two cases.

On July 28, a truck rammed into the vehicle in which the Unnao rape survivor, her counsel and two aunts were travelling to Raebareli. While she and her lawyer sustained grievous injuries, her aunts were killed on the spot. The Unnao rape
survivor and her lawyer, who is being treated at King George’s Medical University are stable, the hospital said on Wednesday.

The Uttar Pradesh Police filed a case of murder against BJP MLA Kuldeep Singh Sengar and nine others in connection with the accident. Meanwhile, the BJP has expelled MLA Kuldeep Singh Sengar amidst the controversy.

(Source: ANI)

Case BriefsHigh Courts

Sikkim High Court: Bhaskar Raj Pradhan, J. hearing a criminal appeal filed by a person convicted of rape and sexual assault under Penal Code, 1860 (hereinafter ‘IPC’) and Protection of Children from Sexual Offences Act, 2012 (hereinafter ‘POCSO’), partly allowed the appeal and set aside conviction under POCSO Act on the ground that punishment imposed under IPC was greater and more rigorous than that imposed under POCSO Act.

Appellant, a taxi driver, was hired by the victim and her two friends to go sightseeing in and around Gangtok. It was alleged that he took the girls for sightseeing and during this period became violent with the victim’s friend. When they wished to return, he began making demands for money and forced the victim’s friend to get off from the car and drove off with the victim while she was unconscious. The victim filed a criminal case against the appellant for commission of rape, penetrative sexual assault on a minor as well as for voluntary causing hurt. Special Judge, POCSO Act convicted the accused-appellant under Sections 323, 354, 354B, 376(1) of IPC and Sections 3(a) and 4 of the POCSO Act. Aggrieved thereby, this appeal was filed.

K. T. Tamang, legal aid counsel for the appellant, argued that since there was a gap between the alleged incident and the seizure of the victim’s article along with the appellants clothing it could not be ascertained if the bodily fluids found on the clothes belonged to the appellant. He relied on the case Ramdas v. State of Maharashtra, (2007) 2 SCC 170 to ask for corroboration of the victim’s testimony as she had hidden that she had consumed alcohol. He argued that based on the admission made by the Investigating Officer (IO), the appellant and the victim’s friend had purchased the alcohol. Hence, the victim had not been sedated but had consumed alcohol. He also submitted that the medical evidence ruled out all the possibilities of ocular evidence being true and thus ocular evidence should be disbelieved, as per the case of Abdul Sayeed v. State of MP, (2010) 10 SCC 259.

SK Chetri (Additional Public Prosecutor) appeared for the State and established the minority of the victim at the time of the incident. He also proved that it was the appellant who had driven the victim and her two friends on the day of the incident. He further proved that victim’s friend was hit by the appellant while they were in the car before they were made to get off from the vehicle. He had also successfully proved that there were bruise marks on the victim’s neck and contusions on the appellant’s chest both of which dated back to the time of the offence. The victim’s deposition was further corroborated by both oral as well as material evidence, although there were a few minor discrepancies between the witness statements.

The Court observed that besides the deposition of the victim about penetration there was no direct medical proof of rape. However, the victim was 17.5 years of age at the time of the commission of the offence and therefore capable of understanding what rape meant. In addition to this, the injuries on the victim as well as the appellant reflected signs of resistance. It was noted that the evidence of the victim was not totally inconsistent with the medical evidence, and it was settled that ocular testimony of a witness has greater evidentiary value vis-a`-vis medical evidence. Even the medical evidence did not completely rule out the possibilities of the commission of rape by the appellant. Further, there was no direct contradiction between ocular and medical evidence.

The Court was of the view that the Special Judge could have punished the appellant only under Section 376 IPC and not under Section 4 of the POCSO Act. Consequently, the sentence under Section 4 of the POCSO Act was set aside as punishment under Section 376(1) IPC mandated the compulsory imposition of rigorous imprisonment with hard labor which was greater in degree than the one provided under Section 4 of the POCSO Act.  Hence, the appeal was partly allowed.[Prem Rai v. State of Sikkim, 2019 SCC OnLine Sikk 81, decided  on 07-06-2019]

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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, 2019 SCC OnLine MP 1672, decided on 17-05-2019]

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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)

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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]

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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]

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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]