Case BriefsHigh Courts

Karnataka High Court: Alok Aradhe, J. dismissed a petition filed under Articles 226 and 227 of the Constitution of India with respect to the claim for compensation under the Victim Compensation Scheme been rejected.

In the present petition, the petitioner sought a writ of certiorari with respect to the quashing of communication through which the claim for petitioner’s compensation under the Victim Compensation Scheme was rejected. Along with the stated petitioner also sought a writ of mandamus to the Karnataka State Legal Services Authority to release an amount of Rs 7 lakhs as compensation in accordance with the revised scheme.

In accordance with the facts of the case as stated, the petitioner claimed to be a rape victim on the basis of which after the FIR and investigation were duly completed, the petitioner’s father made a representation for grant of compensation under the Victim Compensation Scheme before the District Legal Services Authority.

Further, the above-stated authority passed an award by which the petitioner was directed to pay a sum of Rs 3 lakhs as compensation. Though, during the pendency of the proceeding before the Authority, in the criminal case, the petitioner and petitioner’s father were both declared hostile.

Thus in view of the above, the Karnataka State Legal Services Authority through an order had set aside the order awarding compensation passed by the Authority on the ground of petitioner and petitioner’s father turning hostile following which the petitioner approached the High Court.

Conclusion

High Court on perusal of the facts and circumstances of the matter, stated that in the exercise of powers under Section 357-A of the Code of Criminal Procedure, 1973 the State Government framed Karnataka Victim Compensation Scheme, 2007. Clause 6(3) and clause 7(10) of the scheme read as under:

“6(3) The victim/claimant shall cooperate with police and prosecution during the investigation and trial of the case.”

7(10) If a victim or his dependants have obtained an order sanctioning compensation under this scheme of false/vexatious/fabricated complaint which is so held by the Trial Court, the compensation awarded shall be recovered with 15% interest per annum.

From the perusal of the above-stated clauses of the scheme, it is evident that the victim has to cooperate with the prosecution during the investigation and trial and the complaint filed by her should not be fabricated.

High Court held that the petitioner, as well as her father, were declared hostile, they violated clause 6(3) of the scheme and therefore, were not entitles to seek compensation. Thus on finding no merits in the case, the Court dismissed the same. [XXX  v.  Karnataka State Legal Services Authority, 2019 SCC OnLine Kar 1738, decided on 16-09-2019]

Case BriefsHigh Courts

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

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

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

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

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of S.B. Shukre and S.M. Modak, JJ. allowed a set of criminal appeals filed against the judgment of Sessions Judge whereby the appellants were convicted under Section 376 (2)(n) IPC and under various sections of Protection of Children from Sexual Offences Act, 2012 and Prohibition of Child Marriage Act, 2006.

The appellants were the husband, parents, neighbours, etc. of the victim. The prosecution alleged that the victim was married to her husband when she was 15 years of age. She was pressurised by her parents. Soon after the wedding, the husband consummated the marriage with the victim. She was not able to resist the advances and acts of the husband who was 29 years of age. One day, on the pretext of celebrating he birthday with her parents, the victim ran away and lodged an FIR against the husband, her parents and other accused. The matter went to trial and the court convicted the accused as aforesaid. Aggrieved thereby, the convicts preferred the present appeals.

Mahesh Rai and A.A. Dhawas, Advocates for the appellants vehemently argued against the conviction and seriously disputed age of the victim at the time of the incident. They relied on evidence of one Vasanti, an employee of Municipal Council, Chandrapur. Notably, Vasanti was a prosecution witness but her evidence wherein she brought birth register proved that the victim was born in 1994 and not in 1999 as claimed by the prosecution. Thus, at the relevant time, the victim was more than 18 years of age. Therefore she could not be treated as a ‘child’ for the purpose of either POCSO or the Child Marriage Act.

The High Court, noting the above evidence stated that the same was reliable. It observed, “After having examined its own witness and after having not declared the witness with the permission of the Court as hostile to the prosecution, it is not permissible under the law for the prosecution to disown its own witness”. On the aspect of other evidence especially the ossification test, the Court relied on Mahadeo v. State of Maharashtra, (2013) 14 SCC 637 and State of M.P. v. Anoop Singh, (2015) 7 SCC 773. The Court stated, “The ossification test would come into picture only when the documentary and other evidence brought on record by the prosecution does not convincingly or beyond reasonable doubt establish the age of the victim, wherever it is relevant”. Thus, the victim not being a ‘child’ at the relevant time, the appellants were acquitted of offences under POCSO and Child Marriage Act. Further, regarding Section 376(2)(n) IPC, it was noted that the victim admitted that after the marriage she did not object to the acts of the husband and therefore even that offence was not established. Hence, the appellants were acquitted of all the charges. [Vimalbai Manohar Doballiwar v. State of Maharashtra, 2018 SCC OnLine Bom 6956, dated 19-12-2018]

Case BriefsSupreme Court

Supreme Court: Navin Sinha, J. speaking for Ranjan Gogoi,  J. and himself and K.M. Joseph, J. dismissed an appeal, which if not the circumstances of the case were prevalent would have been an appropriate case to be directed for prosecution.

The factual matrix of the case briefs out the relevant points to be considered while comprehending the present cases which are, the prosecutrix was aged 9 years at the time of sexual assault in the year 2004 by an unknown person; along with the prosecutrix was PW-3 who was a minor too. Further, it has been stated that the FIR was lodged by the mother of the prosecutrix and in furtherance, to that, a medical test was conducted which clearly had established the sexual assault signs on the prosecutrix. Six months later when the trial took place PW-3 and prosecutrix both denied the sexual assault and also declined dock identification. Therefore, Trial Court acquitted the appellant, which further was reversed by the High Court on an appeal by the State.

The Supreme Court on noting the submissions placed by the learned counsel who was opposing the appeal, the Court stated that “We find no infirmity in the reasoning of the High Court that, 6 months was a sufficient time and opportunity for the accused to win over the prosecutrix by a settlement through coercion, intimidation, persuasion and undue influence.”

The Court on placing reliance on State v. Sanjeev Nanda, 2012 (8) SCC 450, stated that the mere fact of prosecutrix turning hostile is not relevant, and it also does not efface the evidence with regard to the sexual assault upon her and the identification of the appellant as the perpetrator.

Dispensation of justice in a criminal trial is a serious matter and cannot be allowed to become a mockery by simply allowing prime prosecution witnesses turn hostile.”

The Apex Court in the present case stated it to be a “travesty of justice” if the appellant were acquitted simply on the basis of prosecutrix turning hostile by giving no consideration to the overwhelming evidence placed. Additionally, the Court was of the view that it was a fit case to direct prosecution of the prosecutrix under Section 344 CrPC for tendering false evidence. However, the Court took a different view even after being aware of the perpetrator in the present case only on the basis that the stated occurrence took place 14 years ago and at present she must be married and settled in a new life, all of which may possibly be jeopardized if the present appeal is not dismissed. Therefore, the appeal stands to be dismissed. [Hemudan Nanbha Gadhvi v. State of Gujarat,2018 SCC OnLine SC 1688, decided on 28-09-2018]

 

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of B.R. Gavai and Sarang V. Kotwal, JJ. dismissed an appeal filed against the judgment of the trial court whereby the appellant was convicted for the offence punishable under Section 302 IPC.

The appellant was convicted for the murder of his son. On the fateful day of the incident, wife of the appellant came back home from selling fish and saw that her husband and her son were quarreling as the husband had given the food meant for her, to some other person. Later, the convict and his wife went to sleep on the mezzanine floor of the house while the son was sleeping on the ground floor. The wife woke up on hearing the cries of his son, she ran to the ground floor and saw that her husband was assaulting her son with an iron rod which resulted in death of the son. When the wife tried to stop the appellant, she too was hit by the rod. The appellant threatened her not to tell this to anybody or else she had to face consequences. Subsequently, an FIR was registered and the appellant was convicted by the trial court under Section 302. Aggrieved thereby, the appellant preferred the instant appeal.

The High Court noted that the wife (PW 1) was the star witness in the case. No doubt, in her testimony, she did not fully support the prosecution case. However, the Court observed, that it is a well settled position of law that such part of the evidence of a hostile witness which is found to be trustworthy van always be taken into consideration. In the instant case, PW 1 had supported the prosecution case with regard to earlier incidents of quarrel, she and the appellant going to mezzanine floor. Her evidence of seeing the appellant with iron rod standing near the deceased had gone unchallenged, which was also corroborated by her sister and niece who came running to the house hearing the cries of PW 1. Furthermore, the burden under Section 106 of the Evidence Act shifted on the appellant to prove that how the injuries were sustained by the deceased. The explanation given by the appellant that the deceased fell from the mezzanine floor and thereby sustained injuries were found to be false in light of the evidence of medical expert. In such circumstances, the Court dismissed the appeal. [Babubhai Laxman Bhamaniya v. State of Maharashtra,2018 SCC OnLine Bom 2634, dated 09-08-2018]