Legislation UpdatesNotifications

Government of India has taken steps to strengthen legislative provisions to deal with incidents of sexual offences against women and girls.

Government of India has also issued various advisories to the States/ Union Territories from time-to-time emphasizing the strict actions to be taken by the police in cases of crime against women, including in cases of sexual assault which includes registration of FIR, collection of evidence for forensic examination and use of Sexual Assault Evidence Collection (SAEC) Kit, completion of investigation in sexual assault cases in two months, use of National Database on Sexual Offenders for identifying and tracking repeat sexual offenders, etc.

Criminal laws relating to sexual offences against women provide, inter-alia, for the following actions to be taken by the Police in such cases:

Zero FIR

(i) Compulsory registration of FIR in case of cognizable offence under sub-section (1) of section 154 of the Code of Criminal Procedure, 1973 (CrPC). The law also enables the police to register FIR or a “Zero FIR” (in case the crime is committed outside the jurisdiction of police station) in the event of receipt of information on commission of a cognizable offence, which includes cases of sexual assault on women.

Punishment to a Public Servant

(ii) Section 166 A(c) of the Indian Penal Code 1860 (IPC) provides for punishment to a public servant for failure to record FIR in relation to cognizable offences punishable under section 326A, Section 326B, Section 354, Section 354B, Section 370, Section 370A, Section 376, Section 376A, Section 376AB, Section 376B, Section 376C, Section 376D, Section 376DA, Section 376DB, Section 376E or Section 509 in IPC.

Police Investigation in 2 months | Rape

(iii) Section 173 of CrPC provides for completion of police investigation in relation to rape in two months. In order to facilitate the State police to monitor compliance, in this regard MHA has provided an online portal called Investigation Tracking System for Sexual Offences (ITSSO) for monitoring the same. This is available exclusively to law enforcement officers.

Registered Medical Practitioner

(iv) Section 164-A of CrPC provides that in rape/sexual assault investigation the victim shall be examined by a registered medical practitioner under consent within twenty-four hours from the time of receiving the information relating to the commission of such offence.

Dying Declaration

(v) Section 32 (1) of the Indian Evidence Act, 1872, provides that the statement, written or verbal, by a person who is dead shall be treated as relevant fact in the investigation when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death. Hon’ble Supreme Court in its order dated 7th January 2020, in the matter of Criminal Appeal Nos. 194-195 of 2012 in the case of Purshottam Chopra & Anr. v. State (Govt. of NCT Delhi), directed that a particular statement, when being offered as dying declaration and satisfies all the requirements of judicial scrutiny, cannot be discarded merely because it has not been recorded by a Magistrate or that the police officer did not obtain attestation by any person present at the time of making of the statement.

Forensic Evidence

(vi)The Directorate of Forensic Science Services (DFSS) under the MHA has issued Guidelines for collection, preservation & transportation of forensic evidence in sexual assault cases for Investigation Officers and Medical Officers. In order to facilitate the State Police, Bureau of Police Research and Development (BPR&D) has issued Sexual Assault Evidence Collection (SAEC) Kits to every State/UT. It is necessary to use these SAEC kits in every case of sexual assault reported. MHA advisory dated 5th October 2020 in this matter may be referred. BPR&D and LNJN National Institute of Criminology and Forensic Sciences (NICFS) have been regularly conducting Training and Training of Trainers (ToT) programmes on the procedure for collection, preservation and handling of forensic evidence for Police/Prosecutors and Medical Officers respectively.

Further, MHA stated, any failure of police to adhere to the mandatory requirements may not augur well for the delivery of criminal justice in the country, especially in the context of women safety. Such lapses, if noticed, need to be investigated into and stringent action taken immediately against the officers concerned responsible for the same.

Read the Advisory here: ADVISORY


Ministry of Home and Affairs

[Advisory dt. 09-10-2020]

Case BriefsHigh Courts

Sikkim High Court: A Division Bench of Bhaskar Raj Pradhan and Arup Kumar Goswami, JJ. while upholding the Judgment of acquittal passed by Special Judge (POCSO), held that,

A delicate balance is required to be maintained between the judicial perception of the anguish of the victim and the presumption of innocence of the accused and an inequitable tilt either way may not render sound justice.

Sole testimony of minor prosecutrix was that she was sexually assaulted by respondent that was disbelieved by Special Judge (POCSO).

Assistant Public Prosecutor submitted that the sole testimony as stated above had not been demolished during the cross-examination and as such the Special Judge erred in discarding it.

Complainant (PW-1) with whom the minor prosecutrix was staying for the last 4 months had filed the FIR against the respondent. In the FIR it was stated that when complainant enquired from the minor prosecutrix, she was informed that respondent had been assaulting and raping her for a very long time.

Gynaecologist opined that clinical and cytopathological report was not suggestive of recent forceful sexual intercourse. She admitted that hymen can tear and rupture from so many other things besides sexual intercourse.

Minor Prosecutrix further stated that although PW-1 and her husband slept together in the same house but nobody noticed the respondent sexually assaulting her and whenever she tried to raise an alarm he used to put his hand on her mouth.

Daughter of the respondent told minor witness (PW-3) that the minor prosecutrix was a girl of immoral character. The minor prosecutrix deposed that she was deeply hurt and mentally affected after hearing this and started crying when the complainant (PW-1) saw her. At this moment, the minor prosecutrix told the complainant (PW-1) about the sexual assault.

Decision of the Court

Bench — keeping in mind the ambit and scope of the judicial examination in the present appeal against acquittal, stated that judgment of acquittal passed by the Special Judge is neither perverse nor against the weight of the evidence on record.

Special Judge had disbelieved the deposition of penetrative sexual assault made by the minor prosecutrix. Disbelief was fortified by the medical as well as forensic evidence.

Reasoning for the above decision

Defence had brought out the animosity between the complainant (PW-1) and the sole prosecutrix on the one side and the respondent and his daughter on the other. The negative result of both the medical and forensic evidence collected immediately after the alleged assault does not help the prosecution case further, more so, when she alleged forceful penetrative sexual assault.

Defence has also been able to bring out certain facts about the altercations and fight between them immediately preceding the lodging of the FIR.

All of the above leans towards the claim of innocence of the respondent.

Thus, in the above view, judgment of acquittal is upheld. [State of Sikkim v. Karna Bahadur Rai, 2020 SCC OnLine Sikk 33, decided on 14-03-2020]

Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J., while dismissing the present appeal upheld the decision of the trial court for offences charged under Section 4 of POCSO Act and Sections 342/363/376 of Penal Code, 1860.

In the present appeal filed by the appellant was convicted by the trial court for the under the above-stated Sections. Appellant contended that the impugned judgment ought to be set aside, since it does not extend the benefit of doubt to the appellant in view of inconsistencies in the testimonies of various witnesses.

Further, he contends that MLC of the victim stated that her hymen was normal and the doctor, who was examined for the prosecution had confirmed that the hymen could be ruptured for other reasons as well. Adding to his contentions, he also states that the victim was actually raped by PW-7 and not by the appellant.

Though, the FSL report supported the case of the prosecution that the victim had suffered sexual assault by the accused.

While recording his statement under Section 313 of CrPC, accused also stated that 3-4 days prior to the incident, a quarrel had broken out between him and the mother of the victim due to which, he had been falsely implicated in the case.

Petitioner’s counsel also submitted that since the physical evidence did not corroborate the charges levelled against the appellant, he ought to be acquitted.

Court’s Decision

High Court stated that no contention was advanced on behalf of the appellant was found to be persuasive. Evidence obtained in this case clearly establishes that the appellant is guilty of the offences for which he was charged.

Court stated that, there is overwhelming evidence to establish that the prosecutrix was recovered from the factory premises of the appellant and the same was closed from outside. Mother of the prosecutrix testified to the aforesaid effect. All the other witnesses in the case corroborated the said fact.

Insofar as the MLC was concerned, Dr Anuradha Tyagi was examined, wherein she stated that it was correct that the hymen of the victim appeared to be normal (externally) and as per P/R examination, no tear or bleeding was found. However, she reiterated that the hymen of the prosecutrix was not found to be intact.

Thus, the Court held that testimonies of witnesses were all consistent and there is little room for entertaining any doubt whether the appellant had committed the offences for which he was charged. Forensic evidence fully establishes the case of the prosecution beyond any pale of doubt.

Hence the present appeal is unmerited and dismissed. [Chhedi Paswan v. State, 2020 SCC OnLine Del 464, decided on 17-02-2020]