Case BriefsHigh Courts

Sikkim High Court: A Division Bench comprising of Meenakshi Madan Rai and Bhaskar Raj Pradhan, JJ., while allowing an appeal, found error in trial court’s decision of convicting the appellant under Section 375 of Penal Code, 1860, as none of the ingredients required for an offence to be established under Section 375 was satisfied.

Background of the case

In the present case, the mother of the victim filed an FIR against the appellant. Charge-Sheet against the appellant was under Section 376 of the Penal Code, 1860 read with Section 4 of the Protection of Children from Sexual Offences Act, 2012.

Trial Court had framed charges against the appellant under Sections 5(l) and 5(k) punishable under Section 6 of POCSO Act, 2012 and Sections 376(2)(n), 376(2)(i) and 376(2)(l) of the Penal Code, 1860.

Trial Court on considering the examination of the witnesses, convicted the appellant of offences under Section 376(2)(l) and 376(2)(n) punishable under Section 376(2) of the Penal Code, 1860 but acquitted him of the offences under Sections 5(l) and 5(k) of the POCSO Act, 2012 and 376(2)(i) of IPC.

Thus, on being dissatisfied with the finding the appellant approached the High Court.

Submissions of the appellant

Appellant assailed the impugned judgment on the grounds that although the victim alleged that he had sexually assaulted her on several occasions she did not complain of it either to her parents or anyone else.

The victim complained that the appellant used to frequently come to her home and sexually assault her when she was alone and she had narrated the incident to PW5 who however failed to endorse this evidence of PW9. Contrarily PW1 deposed that appellant told him that the victim had lured him to have sexual intercourse with her.

Even the minority of the victim stood unestablished and the trial court in the absence of any evidence opined that the victim was not a minor. Hence, the appellant be acquitted of the charges.

Submissions by Additional Public Prosecutor

He argued that although the prosecution had furnished the birth certificate of the victim before the trial court in the absence of supporting documents it was not considered. The said document was never contested by the appellant which therefore was an acceptance of the fact that the victim was a minor.

Relying only on the statement of the victim, it was contended that she has specifically stated that the Appellant had requested her to have sex with him holding out the promise that her deformities would be cured if she consented and acted on the consent.

Mother of the victim corroborated the evidence of PW9 as she had stated that on a relevant day, the victim came running to her and told that the appellant had entered the and forcibly laid her on the bed, taken off her lower garment and rubbed his penis on the vagina.

Hence it was stated that no error emanates in trial court’s ruling.

Decision of the High Court

High Court noted that the birth certificate was not contested by the appellant; the trial court chose to ignore it in the absence of supporting documents. Thus, it follows that the age of the victim has not been established.

Court also took note of the evidence of PW6 from which it was clear that the witness has not explained as to whether the laxity of the hymen was a result of the occurrence of the alleged incidents or whether the hymen was lax prior to the incidents or for that matter whether medical science can at all point to the age of the laxity enabling the Court to draw a correct conclusion.

In absence of any categorical and cogent statement of PW6 in this context and in the absence of fresh injuries on the genital or person of the victim, medical report is of no assistance to the prosecution case and neither can the offence of the appellant be foisted.

What does Section 375 of Penal Code, 1860 say?

Appellant was convicted under Section 376(2)(n) and Section 376(2)(I) IPC.

Offence of rape is described in Section 375 of the Penal Code which, inter alia, requires penetration of the perpetrator’s penis to any extent, into the vagina, mouth, urethra or anus of the victim or he makes her do so with him or any other person or that he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person.

Rape would also occur if the accused manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person or the accused applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person.

These acts must necessarily be against the will of the victim, sans her consent and if her consent is obtained by putting her in fear of death or hurt or any of the seven descriptions enumerated in Section 375 IPC.

Observation of the Court

Victim had claimed that there was sexual assault and therefore Court cannot arrive at a hasty conclusion. It was imperative for the prosecution to have extracted from the victim during her deposition the actual act that was committed on her considering that the prosecution is under the mandate of proving its case beyond all reasonable doubt which means that it cannot leave its case to ambiguities thereby leading to erroneous conclusions.

All of the above-stated explains that the appellant does not satisfy the ingredients of Section 375 IPC.

Thus, the Court was of the considered opinion that trial court erred in arriving at the finding and in High Court’s opinion the offence is one under Section 354A (1)(i) IPC.

The appeal is allowed to the extent above. [Tshering Tempa Sherpa v. State of Sikkim, Crl. A. No. 5 of 2018, decided on 12-11-2019]

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 has refused to review their verdict in Manoharan v. State, (2019) 7 SCC 716, upholding  the conviction of the accused. In the said judgment, the bench had unanimously upheld the conviction, but gave 2:1 verdict on quantum of punishment.

While Nariman and Surya Kant, JJ awarded death penalty, Khanna, J did not think that this case was fit for a death penalty and hence, commuted it to imprisonment for life i.e. till convict’s natural life with a stipulation that he would not be entitled to remission under Sections 432 and 433 of the Code of Criminal Procedure, 1973.

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.

MITIGATING FACTORS CONSIDERED BY THE COURT IN THE REVIEW PETITION

Lack of adequate opportunity to place on record material/evidence of mitigating circumstances

After re-visiting the mitigating circumstances against aggravating circumstances, as well as a report commissioned by this Court during the course of appeal and submitted by the jail superintendent, the Court held that the conduct of the Petitioner is merely satisfactory and he has not undertaken any study or anything else to show any signs of reformation.

Backward socioeconomic circumstances

There is nothing to support the arguments that the accused is a helpless, illiterate young adult who is a victim of his socioeconomic circumstances. Far from being so, it is clear through the version of events that the accused had the presence of mind to craft his own defence and attempt to retract his confession through an elaborately written eleven page letter addressed to the Magistrate and had further received adequate legal representation.

Remorse

Accused’s advocate argued that the retraction letter shows that he stopped the co-accused from committing rape and this is evident of the fact that he has remorse which entitles him to commutation, if not acquittal. The Court, however, held that the retraction was extremely belated and only a defence to shield himself. Further, medical evidence has proved that rape was committed on the deceased girl. It is hence factually incorrect to state that the Petitioner prevented the co-accused from raping the girl and is nothing more than a belated lie at the end of the trial.

Young age and aged parents

Mere young age and presence of aged parents cannot be grounds for commutation. Such young age poses a continuous burden on the State and presents a longer risk to society, hence warranting more serious intervention by Courts.

Criminal Record

The Court refused to give leeway of the lack of criminal record, considering that the current crime was not just one offence, but comprised of multiple offences over the series of many hours.

The bench held that the present case is essentially one where two accused misused societal trust to hold as captive two innocent school-going children, one of whom was brutally raped and sodomised, and thereupon administered poison and finally, drowned by throwing them into a canal. It was not in the spur of the moment or a crime of passion; but craftily planned, meticulously executed and with multiple opportunities to cease and desist.

Nariman and Surya Kant, JJ, hence, held

“We are of the view that the present offence(s) of the Petitioner are so grave as to shock the conscience of this Court and of society and would without doubt amount to rarest of the rare.”

While Khanna, J agreed with his learned brothers on the dismissal of review petition and upholding of the conviction of the accused, on the question of sentence, he held,

“I do not see any good ground and reasons to review my observations and findings in the minority judgment.”

[Manoharan v. State, 2019 SCC OnLine SC 1433, decided on 07.11.2019]

Case BriefsSupreme Court

Supreme Court: In an appeal against the verdict of Gujarat High Court that quashed the criminal proceedings against a man accused for sexually assaulting and blackmailing his employee, the 3-judge bench of UU Lalit, Indu Malhotra and R. Subhash Reddy, JJ has set aside the verdict and held that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the respondent was consensual.

The Court said,

“where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the Court that she did not consent, the court shall presume that she did not consent.”

The Court was hearing the case where the respondent had taken inappropriate pictures of the appellant while she was asleep. He had gone to visit the appellant when she was unwell. Taking advantage of the situation, he started blackmailing her to make viral her pictures and to terminate her employment. He then started committing rape on her. When she resigned from the job, he contacted her fiancé and told him is not of good character, she had physical relationship with him and with other boys. When the fiancé refused to meet him, he sent a cover to his residence containing her nude/inappropriate pictures. The parties later entered into a written agreement wherein it was agreed that the dispute between the parties is settled and that the respondent has allegedly paid a huge amount to the appellant.

The Court noticed that whether the respondent by clicking inappropriate pictures of the appellant has blackmailed her or not, and further whether he has continued to interfere by calling appellant’s fiancé or not are the matters for investigation. It, hence, held that the High Court should not have made a roving inquiry while considering the application filed under Section 482 CrPC.

Holding that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the respondent was consensual, the Court said,

“When it is the allegation of the appellant, that such document itself is obtained under threat and coercion, it is a matter to be investigated.”

[Miss XYZ v. State of Gujarat, CRIMINAL APPEAL NO.1619 OF 2019, decided on 25.10.2019]

Case BriefsSupreme Court

Supreme Court:

“The heinous crime committed should not be led into prosecuting a person only because he was part of the Management of the School.”

The bench of L Nageswara Rao and Hemant Gupta, JJ said while quashing the trial against a member of the School management in a case relating to sexual assault of a 6-year-old girl in her school in Haldwani.

The FIR filed by the father of the prosecuterix mentioned that a teacher had sexually assaulted his daughter. In the first statement recorded, the prosecuterix mentioned that the teacher had deliberately and repeatedly assaulted her. However, in another statement, she stated that after she returned from washroom, two Uncles came and picked her away. She also mentioned that these two persons work outside school. She said that one of them wore spectacles. The father of the prosecutrix filed an application to summon the person who wears spectacles, as identified by the victim. She then identified the appellant as the bespectacled person. The principal of the School, however, in a statement issued by her, said that the anger was directed against the Management of the School of which the appellant is a part and hence, his name was dragged in a offence he never committed.

Considering the facts and circumstances of the case, the Court noticed that the prosecutrix is a small child. It is parents of the child who have taken the photographs either from the website of the School or from the Facebook to introduce a person with spectacles as an accused. The initial version of the father of the prosecutrix and of the prosecutrix herself, as disclosed by her father in the FIR, is assault by one person. It said that even if the father of the child has basis to be angry with the Management of the School but, there is no prima facie case of any active part on the part of the appellant is made out in violating the small child. The involvement of other persons on the statement of the child of impressionable age does not inspire confidence that the appellant is liable to be proceeded under Section 319 of the Code. In fact, it is suggestive role of the family which influences the mind of the child to indirectly implicate the appellant.

“Obviously, the father of the child must have anger against the Management of the School as his child was violated when she was studying in the School managed by the appellant but, we find that the anger of the father against the Management of the School including the appellant is not sufficient to make him to stand trial for the offences punishable under Section 376(2) of the IPC read with Sections 5/6 of the POCSO Act.”

The Court also took note of the fact that the prosecution after investigations has found no material to charge the appellant. It, hence, held that statement of the child so as to involve a person wearing spectacles as an accused does not inspire confidence disclosing more than prima facie to make him to stand trial of the offences. Therefore, the order of summoning the appellant under Section 319 of the Code is not legal.

[Mani Pushpak Joshi v. State of Uttarakhand, CRIMINAL APPEAL NO. 1517 OF 2019, decided on 18.10.2019]

Case BriefsHigh Courts

Tripura High Court: Arindam Lodh, J. allowed the appeal and acquitted the appellant from the charges framed under Sections 376(1), 354 and 451 of the Penal Code, 1860 (rape, assault or criminal force to women with intent to outrage her modesty and house trespass respectively).

An FIR was filed against the appellant by a 12 year old victim girl and her mother charging him under Sections 376(1), 354 and 451 of Penal Code, 1860 which further led to the Sessions trial where the additional Sessions Judge passed a judgment against the appellant convicting him for the said charges and punishing him with fine and imprisonment. The accused then filed an appeal against the following judgment of the trial court.

S. Sarkar, learned counsel for the appellant, contended that the statements of the victim and the witnesses have recorded however during cross-examination the victim and the most of the witnesses denied their previous statements which was doubtful on part of the prosecution. The victim also stated that she narrated false facts as she was threatened by her mother. Also the prosecution was unable to explain to why the FIR was filed 2 days later and not on the same day. On comparing statements of the victim’s mother with the records, it was found that she was lying about her absence and the facts. Moreover, as per the medical examination report and the statement of the doctor, it was proved that the victim was not subjected to rape or any kind of physical violence.

High Court opined that the prosecution had failed to prove the case beyond a reasonable doubt. It also took into account that it was unable to understand the reason behind the change of statements of the victim. Relying on the judgment in Panchhi v. State of Uttar Pradesh,  (1998) 7 SCC 177 the Court held that the evidence of a child witness must be evaluated more carefully before it is relied on, as a child can get swayed easily by others guidance. Hence, the court opined that it was risky to convict the appellant under Section 376 of IPC. Accordingly, the appeal was allowed and the appellant was acquitted. [Bimal Acharjee v. State of Tripura, Crl. A (J) 10 of 2014, decided on 04-09-2019]

Case BriefsHigh Courts

Bombay High Court: A.M. Badar, J., allowed a petition filed against the order of the Additional Sessions Judge whereby the application filed by the accused-petitioners for issuing summons to a witness for adducing evidence was rejected.

The petitioners, husband and in-laws of the complainant, were accused of offences punishable under Sections 498-A, 323, 504, 376, 109 read with 34 IPC. The complainant had alleged that the petitioners subjected her to cruelty and that her father-in-law committed rape on her on multiple occasions. After the conclusion of prosecution arguments, the petitioners moved an application before the trial court invoking its powers under Section 311 IPC for summoning one Dr D.C. Patil or his representative. It was contended that evidence of Dr D.C. Patil was essential for a just decision of the case, as the complainant got herself examined by the said doctor often, and on few occasions even on dates when the commission of rape is alleged. The application was, however, rejected by the trial court noting that it was filed at a belated stage only to fill lacunae in the defence case.

The High Court, at the outside, observed that the power of the court to summon a material witness has vast amplitude. For understanding the purport of the term “lacunae”, the Court relied on Rajendraprasad v. Narcotic Cell, (1999) 6 SCC 110. Relying on the discussion of the Supreme Court in the said case, the High Court observed: “Delay in applying for summoning the defence witness cannot be termed as ‘lacuna’ in the defence.” It was noted that the petitioners were pressing for Dr Patil’s examination disclosed the fact of an alleged rape to the doctor she was visiting regularly.

It was further noted that the trial court took noted the fact the complainant denied the prescription issued by Dr Patil after examining her. However, the trial took a shortcut by holding that the said prescription can bean exhibit for the purpose of identification and, therefore, it is not necessary to examine Dr Patil. The Court was of the view that the trial court erred in holding that by marking the prescriptions as exhibits for the purpose of identification, the purpose is served. It was observed: “Merely placing the document in original for the perusal of the court would not be adequate to prove the event embodied within the contents of such document. For proving the contents of those documents, a witness to the execution of the document is required to be examined. The document is required to be proved by examining the author thereof — trial court cannot look into such hearsay evidence by making it admissible in a circuitous way, by exhibiting the same.”

It was held that the petitioners had made out a case of summoning Dr Patil, as his evidence is necessary for a just decision of the case. the petition was allowed and the impugned order was set aside. [Khajasab Suleiman v. State of Maharashtra,              2019 SCC OnLine Bom 2919decided on 16-10-2019]

Case BriefsHigh Courts

Delhi High Court: Vibhu Bhakru, J. while disposing of the petition upheld the decision of the trial court on finding no infirmity in its decision.

The present petitioner sought leave to appeal against the Judgment passed by Additional Sessions Judge.

Background

FIR was lodged pursuant to a complaint filed by Ms ‘P’ and the proceedings for the same commenced under Section 376, Penal Code, 1860. Ms ‘P’ stated that she had developed a friendship with the accused in the year 2013 and over a span of two years the same transformed into a love affair. She had been meeting the accused regularly and he had promised to marry her.

On one occasion, the accused had invited Ms ‘P’ to his house to meet his mother and later, the respondent bolted the door and raped her despite her resistance. However, he had also promised to marry her and had asked her not to disclose the said incident. Further, the allegations placed by Ms ‘P’ were that the respondent had taken her to a hotel and had thereafter, raped her. Although he had promised to marry her, he had resiled from his promise.

After the above incidents, Ms ‘P’ approached the police statement and got her statement recorded, though she declined to get an internal medical examination.

Court’s Observation and Analysis

Fact that the respondent established a physical relationship cannot be disputed. Ms ‘P’ checked into the hotel with the respondent and checked out from the same next morning, clearly shows that they both had booked the hotel for physical intimacy.

Trial Court rightly observed that the only question to be considered was whether Ms P had consented for the physical relationship under a false promise of marriage.

High Court noted that accused had evinced his intention to marry Ms ‘P’ more than two years before the alleged incident of the accused establishing a physical relationship with her. Further, the Court stated that, Ms P’s testimony that she had objected to the accused touching her obscenely but had yielded on him promising marriage, is difficult to accept.

The only reservation of the High Court to the conclusion of trial court was that the implicit assumption that the accused was not on trial for not marrying Ms P. The accused was not trial for not marrying Ms P, but on an allegation of committing the offence of rape.

Another significant noting of the High Court was that,

“It is important to bear in mind that two consenting adults establishing a physical relationship, is not crime. Jilting a lover, however abhorrent that it may seem to some, is also not an offence punishable under the Penal Code, 1860.”

Prosecutrix in the present case claims that her consent was not voluntary but was obtained by inducing her on the pretext of a promise to marry. Plainly, this is not established in this case. Prosceutrix had three months after the first alleged incident of rape, voluntarily checked into a hotel with the accused. Clearly, this was a voluntary act; there is no merit in the contention that this act was induced by a promise of marriage.

Additionally, in view of the above, the Court also added that,

Inducement to have a physical relationship by promising marriage must have a clear nexus with the moment promise of marriage cannot be held out as an inducement for engaging in sex over a protracted and indefinite period of time.

In the present case, prosecutrix appears to have used the allegation of inducement of a physical relationship on the promise of marriage, to not only justify her physical relationship with the accused in the past, but also her conduct after the FIR was filed. In her testimony, she had explained that she had done so because the accused had contacted her and again reiterated his promise to get married to her.

Thus the petition in the above terms is accordingly dismissed. [State v. Sandeep, 2019 SCC OnLine Del 10332, decided on 25-09-2019]

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, 2019 SCC OnLine Ker 2934, 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]