Case BriefsHigh Courts

Calcutta High Court: Bibek Chaudhury, J. allowed an appeal which was filed assailing the judgment and order of conviction passed by the Trial Court for committing offence under Section 324 of the Penal Code, 1860 and consequence sentence of imprisonment for a term of one year with fine.

A written complaint from one Mosiluddin Ahmed was received that his younger brother Serajuddin Ahmed was returning from mosque after observing Namaz. At that time the appellant along with 4 others wrongly restrained him in front of the house of one Jainul and assaulted him on his head with iron rod and Hasua with the intention to kill him. As a result of assault, the brother of the de-facto complainant was seriously injured. It is also stated that the accused persons are habitual offenders. They also assaulted some other people of the village and they were facing trial in G.R. Case No.1069/1991.

On completion of investigation, police submitted charge-sheet against the accused persons. The Trial Court framed charge against five accused persons including the appellant under Sections 341/325/307/34 of the IPC. On the conclusion of trial, the appellant was convicted and sentenced in the manner disclosed above while other accused persons were acquitted from the charge.

Amicus curiae submitted that in a criminal trial the prosecution is duty bound to prove at the foremost the date, time and place of occurrence and the manner of the incident constituting the offence before the Trial Court. If there is any deviation in proving the aforesaid facts, the entire prosecution case becomes suspect. He contended that evidence on record was not sufficient enough against the appellant and he is entitled to be acquitted of the charge.

The Court was of the opinion that in case of discrepancy between ocular and medical evidence, ocular testimony shall prevail because the medical evidence is in the nature of an expert’s opinion. The Court was of the view that appellant was entitled to benefit of doubt and the learned Trial Judge ought to have recorded an order of acquittal in favour of the appellant. The appeal was allowed setting aside the judgment and order of conviction.[Aminul Islam v. State of West Bengal, C.R.A. 520 of 2018, decided on 06-05-2022]


Amicus Curiae : Mr Dipanjan Dutt

For the State : Mr Ranabir Roy Chowdhury, Ms Sujata Saha


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Siddharth Mridul and Anup Jairam Bambhani, JJ., while addressing a very unfortunate incident, involving sexual offences to the extent of rape and carnal intercourse with a child, expressed that,

“…to sexually violate an innocent child is in any case an abhorrent act; but, when that happens within the filial father-daughter relationship, of which purity of affection is a sine-qua-non, the act descends to a different depth of depravity.”

Instant two appeals arose from a judgment and a sentencing order.

The present matter concerned sexual offences against a ‘minor’, the names of the prosecutrix, of one of the convicts and some key witnesses were anonymized in keeping with the verdict of the Supreme Court in Nipun Saxena v. Union of India, (2019) 13 SCC 715, and Section 228 (A) of the Penal Code, 1860 and Section 327 (2) of the Criminal Procedure Code, 1973.

Appellants impugned judgment whereby they were convicted by the trial court for offences under Sections 376(2)(g) and 377 read with Section 34 IPC. They also challenged the sentencing order.

Background of the Matter

Prosecutrix had alleged that her father (A1) and his friend (A2) committed upon her offences as defined under Sections 376(2)(g) and 377 IPC.

Prosecution case before the trial court was that the prosecutrix used to ordinarily stay in the care and custody of her bua, who subsequently appeared as PW-9 at the trial and that on the commencement of the prosecutrix’s summer holidays in 2012, her father took her from the care and custody of her bua to the house of Manorama Begum where A1 and A2 inter alia committed gang-rape and sodomy upon the prosecutrix.

Prosecutrix revealed the said incident to her teacher who happened to be the daughter of the prosecutrix’s bua and appeared as PW-1 at the trial. The prosecutrix also informed the counsellor/coordinator working in the said NGO about the offences committed upon her.

Upon registration of the FIR under Sections 376(g) and 377 IPC, the prosecutrix was taken to the All India Institute of Medical Sciences (AIIMS) New Delhi for medical examination. Subsequently, A1 and A2 were arrested.

During the course of the trial, the prosecution cited 17 witnesses, while the appellants led no defence evidence.

Analysis, Law and Decision

Statement of Prosecutrix | Section 164 CrPC

High Court firstly noted that, the prosecutrix’s version in her statement under Section 164 CrPC, as also in her examination-in-chief and cross-examination in court, remained consistent and unwavering.

In Court’s opinion, the examination-in-chief of the Investigating Officer, PW-15 elicited nothing that materially impacted the evidence that came on record either for or against the appellants.

Bench further expressed that,

Where the evidence of the prosecutrix inspires confidence, it must be relied upon, without seeking corroboration of her statement in material particulars.

Medical Evidence

From the MLC it was gathered that the hymen of the prosecutrix who was only about 10 years of age, was found torn, there was redness around her vaginal introitus (opening of the vagina) and there was redness in the vaginal area.

For the sake of completeness, the two appellants were put through a medical examination at AIIMS, and it was opined that there was nothing to suggest that either of them was incapable of performing sexual intercourse under normal circumstances, nor was any other abnormality noticed that would in any manner preclude the commission of the offence by either of the appellants.

In view of the above Court reached the following conclusion:

  • The prosecutrix’s statement recorded under Section 164 CrPC and her deposition in court, in which she says that appellant A2 committed upon her the carnal acts as described in her own wording, are cogent, credible and trustworthy. Furthermore, the prosecutrix’s statement, as recorded under Section 164 CrPC as also in her deposition in court, in relation to what her father appellant A1 did to her is also cogent, credible and trustworthy.
  • Bench stated that they are not depending solely on the prosecutrix’s statement under Section 164 CrPC or on her deposition in Court but are also supported in its inferences by the medical evidence that came on record, by way of the MLC of the prosecutrix. This made the allegations against the appellant all the more plausible, absent any other explanation and in fact, no explanation or evidence had been brought forth by the defence in the said behalf.

Hence, Bench found nothing erroneous or amiss in the conclusions arrived at by the trial court, that both appellants were guilty of the acts alleged against them.

Question to be addressed:

On the basis of evidence on record, what offences are made out and stand proved against the appellants?

High Court stated that the appellants were charged with offences punishable under Sections 376(2)(g) and 377 read with Section 34 IPC. It is important to note here that the offences are alleged to have been committed on various dates on or before 22.07.2012, by reason of which they would be covered by the IPC as it existed prior to its amendment by the Criminal Law (Amendment) Act, 2013 (Act 13 of 2013) with retrospective effect from 03.02.2013. Accordingly, Section 376(2)(g) as it existed prior to amendment by Act 13 of 2013 needs to be considered in light of the definition of “rape” as contained in the unamended Section 375 of the IPC.

Court observed that the expanded definition of rape as contained in amended Section 375 with retrospective effect from 3-3-2013, did not exist on the statute book at the time of the commission of the offence by the appellants i.e., on or before 22-7-2012 and there was neither any allegation nor had anything come forth in evidence to show that the appellants committed any penetrative sexual intercourse with the prosecutrix.

Therefore, in Court’s view, the finding of the trial court that the appellants were guilty of the offence under Section 376(2)(g) was untenable and accordingly set aside.

Moving further, the Court stated that while amending Sections 375 and 376 (2) (g) by the amending Act 13 of 2013, the Legislature had not made any amendment to Section 377 IPC which continues to read as under:

“377. Unnatural offences. —Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 

Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

(emphasis supplied)

What does the phrase ‘carnal intercourse against the order of nature’ appearing in Section 377 IPC mean?

Bench elaborated stating that Section 377 IPC referred not to sexual intercourse but to carnal intercourse, whereby the intention of the legislature was to engraft a different offence in Section 377 IPC vis-à-vis Section 375 IPC, which is why a different phrase was employed.

High Court opined that ‘carnal intercourse against the order of nature’ appearing in Section 377 must have the following ingredients:

  1. it must have to do with flesh and sensuality, namely it must be carnal;
  2. there must be intercourse between individuals, without restricting it only to human-to-human intercourse;
  3. it must involve penetration other than penile-vaginal penetration, since by the very nature, intent and purpose of Section 377, it must refer to an unnatural act, such as ‘penile-anal penetration’, ‘digital penetration’ or ‘object penetration’.

“…we however completely agree that attempting to define the phrase ‘carnal intercourse against the order of nature’ with exactitude is neither possible, and perhaps not even desirable.”

 Bench held that,

“…any physical act answering to all the above-stated ingredients committed upon a minor is per-se ‘carnal intercourse against the order of nature.”

 What did the prosecutrix state in her testimony?

The Bench noted that the prosecutrix’s testimony was clear, cogent and unwavering insofar as it concerns the allegation against appellant A2, that he committed digital penetration of the prosecutrix’s anus.

In her statement under Section 164 CrPC and in her deposition in court, the prosecutrix stated that appellant A2 would gag her mouth with cloth, bind her limbs and then do ‘batamizi’ with her.

On further elaboration, she said that appellant A2 would remove her clothes and then lie on top of her and touch her chest, vagina and anus. He would then put his penis against her vagina and anus and also insert his finger into her anus. She had deposed that the whole ordeal would last about half an hour.

The prosecutrix alleged that after appellant A2 was finished, her father appellant A1, would commit all the aforesaid acts upon her other than the act of digital penetration.

Therefore, in view of the above, no further analysis was required that offences under Section 377 read with Section 34 IPC were made out against the appellant A2.

In Court’s opinion, the actions of the father were covered under Section 34 IPC, namely the acts done by him in furtherance of a common intention to commit the offence and would make him liable for all acts committed by appellant A2 in the same manner as if the acts were done by appellant A1 himself.

Hence the trial court’s conclusion was correct except the conclusion with regard to the offence under Section 376(2)(g) IPC was flawed.

In the present matter, the offending acts went beyond the physical element of sexual assault but would have severely damaged the mind and psyche of the victim which trauma may linger for very long.

Without at all appearing to be Biblical, crime in society is one thing; but crime within the closest confines of the family, adds to it the element of sin.

 In view of the above discussion and modification to the judgment and conviction and sentencing order, the appeal were dismissed. [A v. State, 2021 SCC OnLine Del 5396, decided on 20-12-2021]


Advocates before the Court:

For the Appellant: Mr. Chinmoy Pradeep Sharma, Senior Advocate with Ms. Rakhi Dubey and Mr. Himanshu Gera, Advocates.

For the Respondent: Mr. Ashish Dutta, APP for the State.

Case BriefsSupreme Court

Supreme Court: In a case where a relative committed rape on the prosecuterix and none of the family members believed her and in fact beat her up when she narrated the incident, the bench of MR Shah* and Sanjiv Khanna, JJ found it unfortunate that even the sister-in-law (Jethani) and mother-in-law though being women did not support the prosecutrix. The Court said,

“Being women at least the sister-in-law and mother-in-law ought to have supported the prosecutrix, rather than beating her and not believing the prosecutrix.”

Factual Matrix

In the intervening night of 9th August, 1999, when the husband of the victim/prosecutrix was away, the accused, a relative, jumped the wall and entered into the room of the prosecutrix, pressed her mouth, committed rape and thereafter fled away by jumping the wall.

When the prosecuterix narrated the incident to her sister-in-law and mother-in-law, they did not believe her. On the contrary, she was beaten. When none of the other family members of her matrimonial house took any action, she sent the information to her parental house. An FIR was lodged on 12.08.1999 after she was taken to her parental house.

The accused took the plea of alibi and according to him he had gone to Indore on the day of incident and he was not in the village on that day. However, the trial Court did not believe the plea of alibi and by an order dated 31.07.2000, convicted the accused for the offence under Section 376 IPC and sentenced him to undergo 7 years rigorous imprisonment with fine of Rs.500/- with default stipulation.

Interestingly, the prosecution had argued before the Supreme Court that on one hand the accused took the plea that it was a case of consent and on the other hand accused took the plea of alibi and that he was not in the village on the date/night of the incident.

It was submitted on behalf of the accused that the doctor in her deposition specifically stated that on examination it was found that there were no external or internal injuries found in the person of the prosecutrix. Therefore, the prosecution case rests solely on the deposition of the prosecutrix only. It was also argued that there was a delay in filing of the FIR.

Analysis

Prosecuterix’s testimony

The Court noticed that the prosecutrix has fully supported the case of the prosecution and has been consistent right from the very beginning. Nothing has been specifically pointed out why the sole testimony of the prosecutrix should not be believed. Even after thorough cross-examination, she has stood by what she has stated and has fully supported the case of the prosecution.

The Court, hence, found no reason to doubt the credibility and/or trustworthiness of the prosecutrix.

The Court took note of the following rulings:

  • There can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. [Ganesan v. State, (2020) 10 SCC 573]
  • As a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It is further observed and held that sole testimony of prosecutrix should not be doubted by court merely on basis of assumptions and surmises. [State (NCT of Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575]
  • If the evidence of the victim does not suffer from any basic infirmity and the “probabilities factor” does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming.  [State of Rajasthan v. N.K., (2000) 5 SCC 30]
  • Testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. [Sham Singh v. State of Haryana, (2018) 18 SCC 34]

Medical Evidence

It was submitted on behalf of the accused that as there were no external or internal injuries found on the body of the prosecutrix and therefore it may be a case of consent. The Court, however, held that the submission had no substance at all as such question was asked, even remotely, to the prosecutrix in her cross-examination.

Plea of alibi

It was the case on behalf of the accused and the defence that as one Babulal had met with an accident, the accused had gone to Indore taking Babulal and had stayed at Indore on that night. However, it was found that Babulal had an injury before two months. Defence had not produced the record of the hospital or examined doctor or employee of the hospital where the said Babulal was taken for treatment. According to the defence, they had stayed in the house of one Tulsiram at Indore but the said Tulsiram has not been examined. Even the Babulal has also not been examined.

Hence, the trial Court has rightly disbelieved the plea of alibi raised by the accused.

Delay of three days in lodging the FIR

In a situation, where the prosecuterix was not only disbelieved but beaten up at her matrimonial home after she narrated the incident and had to wait to be taken to her parental home, the Court found that the benefit of such delay cannot be given to the accused who as such was the relative.

Reduction of sentence

As per section 376 IPC pre-amendment, the minimum punishment shall be seven years. However, as per the proviso, the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

In the present case, no exceptional and/or special reasons were made out to impose the sentence of imprisonment for a term of less than seven years. On the contrary and in the facts and circumstances of the case, the Court said that the accused has been dealt with lightly by imposing the minimum sentence of seven years rigorous imprisonment only.

“The victim was the relative. Nobody in the family at matrimonial home supported her and she suffered the trauma. She was compelled to go to her parental house and thereafter she was able to lodge the FIR. The accused has come out with a false case/plea of alibi, which is not accepted by the courts below. Under the circumstances, the prayer of the appellant to reduce the sentence and/or to convert the sentence from seven years rigorous imprisonment to seven years simple imprisonment is not accepted and it is rejected.”

[Phool Singh v. State of Madhya Pradesh, 2021 SCC OnLine SC 1153, decided on 01.12.2021]


Counsels

For accused: Advocate Aditya Gaggar

For State:  Additional Advocate General Abhay Prakash Sahay


*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Sadhana S. Jadhav and Prithviraj K. Chavan, JJ. confirmed the death sentence awarded by the trial court to the accused−appellant for committing heinous crime of brutal sexual assault on a child aged 3-years and 9-months, and after that committing her murder. While confirming the death sentence in this rarest of rare cases, the High Court observed:    

“The act of the accused is gruesome and is committed in a diabolic manner. It is a heinous offence. It is unimaginable that a cheerful, frolicking child enjoying with her pet would provoke the feelings of lust in a man who is a father of two daughters and a son. The perversity in the mind of the accused is apparent and therefore, we are of the opinion that the aggravating circumstances in the present case outweigh the mitigating circumstances placed before the court in the course of hearing of the appeal.”

Factual Matrix

In the instant proceedings, the State sought confirmation of death sentence passed by the trial court against the accused. The accused also filed a criminal appeal against the order of the trial court whereby he was convicted and directed to be hanged by neck till he is dead for having committed offences punishable under Sections 302, 363, 376(2)(i) and 201 IPC, and Sections 8 and 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

On the unfortunate day of 30-9-2013, the 3-years and 9-months old victim went out of her house to play with her dog, but did not return. Upon searching, her father found the dog tied to the watchmen’s chawl which was just next to the room of the accused (a watchman), but could not find her daughter. A missing report was lodged and investigation began. The dead body of the victim was found lying in a mud pond. The accused was arrested. The autopsy of the dead body showed that she was brutally sexually abused before she was put to death. On completion of trial, the accused was convicted and sentenced as mentioned above.

Law, Analysis and Decision

Circumstantial evidence

The instant case rested on circumstantial evidence. The father of the victim stated that while searching for his daughter, he saw their dog tied to a window in front of a room in the watchmen’s chawl. The legs of the dog were smudged by mud. The father saw the accused standing behind the house and there was mud smudged on his legs as well. Another prosecution witness, a watchman, stated that he saw the accused with a small girl and a dog standing on the road which lead towards the forest. Another witness, a rounder/supervisor attached to the Maharashtra Guard Force Security, stated that on the day of the incident the accused was absent from his duty as watchman. Upon being enquired, the accused told him that he was under stress and wanted to return to his village immediately.  In fact, in his cross-examination, this witness further disclosed that the accused had divulged to him that he had committed a great blunder and therefore desired to return to his village.

The High Court noted that the prosecution evidence indicated that the accused was last seen with a small girl and a dog in the afternoon of the day of the crime. Upon meticulous appreciation of evidence of the prosecution witnesses, the Court found that the testimony of none of the witnesses was shattered by way of cross-examination. The sterling testimony of these witnesses deserved to be relied upon.

The Court noted that the evidence would establish that the accused was lastly seen with a child who was found dead soon thereafter. This was to be read in consonance with the fact that the dog was tied to the window of a room just next to the house of the accused. Apart from last seen theory, the scene of offence panchanama as drawn by the investigating agency further substantiated the case of the prosecution.

Medical evidence

Apart from the circumstantial evidence, the medical evidence also assumed importance. The accused was taken for medical examination on 4-10-2013. Upon clinical examination, it was observed that there was abrasion on foreskin and congestion of glance penis. It was further opined that the age of injury was 4 to 5 days old.

The Court recorded that there was nothing to deny the medical opinion. The accused did not assign any reason for the injuries on his private parts. The injuries went unexplained. However, it showed that the accused had sexual intercourse with a small child 2 to 4 days ago. This opinion was corroborated by the evidence of another doctor who performed autopsy on dead body of the victim.

Referring to Modi’s Medical Jurisprudence which discussed the nature of injuries on the person of an accused in a case of forcible sexual intercourse, the Court noted that there would be injuries on the penis which would be within the special knowledge of the accused. In fact, the injuries were within the special knowledge of the accused and he ought to have given explanation for the same.

Extra-judicial confession

Another incriminating circumstance against the accused was the evidence of the supervisor to whom the accused made an extra-judicial confession to the extent that he was under stress. The specific reason for stress was not divulged. However, the accused confessed that he had done a wrong thing.

The Court observed that there is no doubt that an extra judicial confession is a weak piece of evidence. However, it reflected upon the conduct of the accused on the day of incident.

Quantum of sentence

The High Court heard the accused on the point of sentencing through video conferencing. The Court spoke to the accused personally and he did not show any remorse. The only mitigating circumstance put forth by him was economic stringency of his family. The Court was convinced that the act committed by the accused was gruesome and revolts human conscience.

After relying on the decisions in Vasanta Sampat Dhupare v. State of Maharashtra, (2017) 6 SCC 631 and Ramnaresh v. State of Chattisgarh, (2012) 4 SCC 257 on the principles of sentencing, the High Court recorded that the accused did not for a moment thought of the precious life of the minor child. It did not strike him for a moment that he himself  happens to be a father of two daughters, who are yet to see the life. The crime smacks of degradation of a girl child, depravity and perversity of his mind. The child was sexually assaulted in barbaric and inhuman manner. It is diabolic in nature and thereafter, it was a brutal murder which makes it the rarest of rare case. The Court observed:

“It is such an incident that parents of every small girl child would feel a chill down the spine before sending their undefended, innocent, minor girl child to see the rainbow as they would be scared as to whether she would fall a prey to any monster like the present one. It is the safety of a girl child which is of paramount importance to a society.”

The Court concluded that it is the bounden duty of the courts to impose a sentence which is proportionate to the offence committed by an accused. The accused in the instant case deserved death penalty, as any alternative punishment would be unquestionably foreclosed taking into consideration the inhuman and barbaric act of the accused. The prosecution has proved the chain of aggravating circumstances as against the mitigating circumstances beyond reasonable doubt. The act of rape and the manner in which the child was murdered and abandoned in the muddy pond invited indignation and abhorrence. Hence, the death penalty awarded to the accused was confirmed. And the criminal appeal filed by the accused was dismissed. [State of Maharashtra v. Ramkirat Munilal Goud, 2021 SCC OnLine Bom 4562, dated 25-11-2021]

Case BriefsHigh Courts

Sikkim High Court: The Division Bench of Meenakshi Madan Rai and Bhaskar Raj Pradhan, JJ., allowed an appeal which was filed in order for the Court to determine as to whether the Appellant was the perpetrator of the offence of rape.

A complaint was lodged before the Police Station informing therein that the Victim, his sister, aged about 12 years at the time of the incident had been impregnated by the Appellant. The case was registered under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). On completion of investigation, finding prima facie case under Section 376 of the Indian Penal Code, 1860 (for short, the “IPC”) read with Sections 4 and 6 of the POCSO Act, Charge-Sheet was accordingly submitted against the Appellant.

Trial Court having duly considered the evidence including that of seventeen Prosecution Witnesses concluded that the Prosecution was unable to prove the Charge against the Appellant under Section 511 of the IPC, Sections 5(j)(ii) and (l) of the POCSO Act, but succeeded in bringing home the Charge under Section 375 punishable under Section 376 of the IPC.

Counsel for the Appellant put forth a two-pronged argument, the first being that, as per the Victim, she was raped by the Appellant in the month of December, 2019 and January, 2020, but gave birth to the girl child in the month of May, 2020 on which count alone the Prosecution case is demolished. Secondly, although the Prosecution claims that the DNA Profiling of the Appellant and the child born to the Victim matches, the evidence on record clearly indicates that the Prosecution has failed by way of cogent proof to establish that any blood was drawn from the Appellant for the purposes of DNA Profiling.

Additional Public Prosecutor raised the contention that the evidence of the Victim is proof of the fact that the Appellant had committed penetrative sexual assault on the Victim without her consent. That, the DNA Profiling of the child born from the Victim matched that of the Appellant and the Victim duly buttressed by the evidence of P.W.16, the DNA Examiner who deposed that on examination of the DNA Profiles of the new born baby with that of the Victim and the Appellant, it emerged that the Appellant is the biological father of the child whereas the Victim is the biological mother of the baby.

The Court after arguments noted the following:

  • In the first instance it was noticed as per her 164 Cr.P.C. Statement that the Appellant came to her room one night told her he likes her, forcefully opened her clothes, touched her on her chest and left. Two days later he came to her room at night forcefully opened her undergarment and had sex with her. Three days later while she was working in the kitchen during the night, he came and pulled her and took her to the nearby School where he again had sex with her and she was pregnant.
  • Her evidence during trial reveals that the Appellant had visited her home in the month of December, 2019 on which date, he spoke with her father and returned to his home. And then the following days he again visited and committed penetrative sexual assault without her consent. Later, in the Urine Pregnancy Test it was found that she was pregnant. She was then called to the Mangan Police Station and later forwarded to District Hospital, Mangan for medical examination where she was found to be eight months’ pregnant and was therefore taken to the Mamtalaya Shelter Home where she remained for about a month. On the 19th day of some month in the year 2020, which she did not remember, she delivered a baby girl at the STNM Hospital.
  • It emerged that she did not disclose the incident including that of her pregnancy to any of her family members. from her evidence and her Section 164 Cr.P.C. Statement, it is apparent that she has not stated anywhere that the Appellant forced her to commit the offence or that she was put in fear by the Appellant that he would hurt her or any of her family members or for that matter any of her kith and kin.
  • Medical Officer posted at Mangan District Hospital physically examined the Victim on 10-05-2020 and found that Victim had been brought with an alleged history of sexual assault by the Appellant in the month of December, 2019 and thereafter again on 6th and 7th May, 2020. She found that the Victim was about thirty-two weeks pregnant and she had bruises on her inner thigh which were assessed to be around three days old.
  • Doctor also stated that although the Victim told her that the offence was committed in the month of December, 2019, however, on physical examination it transpired that the alleged offence would have occurred in the month of September or October, 2019, to complement the length of the pregnancy.

The Court was of the opinion that in the light of these anomalies in the Prosecution case, the Court cannot conclusively hold that the blood of the Appellant was drawn for DNA Profiling to establish the paternity of the child born to the Victim. It thus emerges that the victim appears to be closeting the actual circumstance of her pregnancy, the fact that she gave birth in May, 2020 after making claims of being raped in December, 2019/January, 2020 is proof of this circumstance. Her evidence in no manner can be classified as that of a sterling witness and is unreliable.

The Court while allowing the appeal concluded that Prosecution has not been able to establish beyond a reasonable doubt that the Appellant was the perpetrator of the offence of rape as charged. Consequently, the conviction and sentence imposed on the Appellant vide the impugned Judgment and Order on Sentence of the Trial Court was set aside. Appellant was acquitted of the Charge under Section 375 punishable under Section 376 of the IPC.[Cho Mingur Lepcha v. State of Sikkim, 2021 SCC OnLine Sikk 174, order dated: 19-11-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Mr Jorgay Namka, Advocate (Legal Aid Counsel) for the Appellant.

Mr S. K. Chettri, Additional Public Prosecutor with Ms Pema Bhutia, Assistant Public Prosecutor, for the State-Respondent.

Case BriefsHigh Courts

Bombay High Court: Pained to note the permitting of questions by the Lower Court which crossed all lines of dignity of a woman, Division Bench of Sadhana S. Jadhav and Sarang V. Kotwal, JJ., while denying reducing the sentence of the 3 accused who raped a woman, expressed regarding sentencing policy that,

“…object of sentencing policy should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it.”

“Sentencing Policy adopted by the Courts, in such cases, ought to have a stricter yardstick so as to act as a deterrent”

Prosecutrix was taken to various places and then to a secluded place where all 3 accused appellants committed rape on her one after the other and later she was left near her residence. In the meantime, police was informed by the relatives of prosecutrix’s who were searching for her.

FIR was lodged under various sections including Section 376(2)(g) of the Penal Code, 1860. All the accused were arrested and the Indica Car in which the prosecutrix was taken to various places was also seized.

What transpired the above-stated facts?

Prosecutrix while waiting for a bus to reach a destination was approached by a maroon coloured Indica car and the driver offered the prosecutrix to drop her. PW-1 was aware that some vehicles operating for the Call Centers were used to take other passengers and under the said impression in light of getting late she decided to go in that car.

On the way accused 1 told the prosecutrix that there would be 8-10 more people who would commit rape on her. The accused even bought beer and some food and consumed the same.

Further, accused 1 asked PW-1 to make a call to her mother and inform her that she would be late so that nobody starts searching for her. After that, she was taken to a secluded place where she was raped by one after the other and dropped around 12.45 near her residence. On reaching her place she immediately called her mother and after that, her aunt and two friends came to her flat and then the police also arrived.

She was taken to a hospital for medical examination, and she even identified all the accused in the Court.

Bench noted that defence tried to develop a theory of consensual sex and kept giving certain suggestions which this Court disapproved of.

Court stated that it was pained because of the passive approach adopted by the Judged in allowing such questions. The said questions crossed all lines of basic dignity.

“Under the garb of giving suggestions. Graphic details of the act were put to the witness.”

Under Section 152 of the Indian Evidence Act, the Court was duty-bound to forbid any question which appeared to be intended to insult or annoy or which though proper in itself appeared to the Court needlessly offensive in form. Section 151 of the Indian Evidence Act also empowers the Court to forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court, unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed.

Noting the above, lower Court Judge failed in his duty in not protecting the dignity of PW-1 and not exercising his powers under Sections 151 and 152 of the Indian Evidence Act.

High Court added that it is necessary to remind trial Courts that under Section 148 of the Indian Evidence Act, it is their duty to decide when the witness shall be compelled to answer.

PW-1 had denied the theory of consensual sex and, therefore, all further suggestions in respect of the actual act of intercourse were totally unnecessary.

Special Public Prosecutors

“Not happy with the silence kept by the Special Public Prosecutor by not objecting to the suggestions.”

Court expressed that it is necessary to remind the prosecutors that under the scheme of CrPC, they are in-charge of the conduct of the prosecution. They are supposed to perform their duties responsibly and they are supposed to render sincere assistance to the Court. It is their responsibility to protect the interest of the victims and the witnesses before the Court.

“Prosecutors cannot only concentrate on securing conviction, but the conduct of the proper trial is also their duty.”

Bench held that the circumstances of the case sufficiently prove the guilt of the accused.

Medical evidence had also shown that PW-1 was subjected to forceful sexual intercourse.

Prosecution had established its case against all the accused beyond all reasonable doubt.

While concluding, Court stated that in the present matter, PW-1 innocently took the lift from accused 1. Accused 1 & 2 and accused 3 who joined them subsequently, took advantage of her helpless condition. They committed rape on her. She was threatened. PW-1 has suffered extreme trauma.

Court upheld the decision of the trial court. [Ranjeet Shahaji Gade v. State of Maharashtra, 2021 SCC OnLine Bom 3061, decided on 28-9-2021]


Advocates before the Court:

Ms Anjali Patil, Advocate a/w. Mr Nauman Shaikh, for the Appellant in Criminal Appeal No. 310/2012.

Mr P.G. Sarda, Advocate for the Appellants in Criminal Appeal No.184/2012.

Ms S.V. Sonawane, APP for the Respondent–State.

Case BriefsHigh Courts

Kerala High Court: Expressing,When a man abandons his wife and children, roving vultures wait to prey on not only the abandoned woman, but also the helpless children” Division Bench of K. Vinod Chandran and Ziyad Rahman A.A., JJ., noted a case wherein a priest/oracle of a temple took the abandoned woman and three children under his wing and repeatedly molested the elder girl child in the presence of her siblings.

Noting the above stated horrendous act of the priest, Bench expressed,

“We wonder which God would accept the obeisance and offerings of such. Priest or make him a medium?”

Detailed Analysis

Counsel for the appellant, K.M. Frioz:

There was a misjoinder of charges. The Protection of Children from Sexual Offences Act, 2012 was brought into effect from 14-11-2012 and the incident on which the first charge was levelled was prior to the POCSO Act and required a committal proceeding under the CrPC.

Further, it was also contended that clubbing of the charges resulted in grave prejudice to the accused, since the POCSO Act by Sections 29 and 30 raised a presumption against the accused.

Court’s View:

High Court stated that the ground of absence of committal proceedings against the alleged offence could not be sustained.

Further, the Court referred to the Supreme Court decision of Moly v. State of Kerala, (2004) 4 SCC 584, wherein the enactment under which the offence was alleged, did not have a provision similar to Section 33 of the POCSO Act.

POCSO Act enables such other offences to be tried without committal proceedings if it is to be tried in the same trial. The grounds of prejudice urged fails also for the reason that it is merely imaginary. We reject it at the outset on the above reasoning and also on the appellant having merely ‘cried foul’ without the particular prejudice caused or the specific failure of justice, having been stated or substantiated.

Evidence on Merits – Dealt

ChildLine personnel was informed that a woman and four children were wandering and PW 15 along with two Woman Civil Police Officers brought them to the Vanitha Cell, on enquiry it was revealed that the woman showed signs of acute mental illness and displayed violent tendencies.

Elder Child had revealed that the accused who was living along with the woman, had sexually molested her for the last one year.

Since the woman had shown signs of mental illness, on the orders of CJM, she was taken to the Mental Health Centre along with the youngest child. Other children were admitted to the Government Juvenile Home.

Whether the age of the victim was proved?

The offence was committed long before the JJ Act, 2015 came into force.

Court emphasized that, since the POCSO Act did not contain a provision to determine the age of a victim, the proof has necessarily to be in accordance with the rigour of the requirement as insisted by the earlier JJ Act and Rules.

Bench added that

“…there was no prejudice caused to the accused for reason of clubbing an offence under Section 376(2) with an offence under the POCSO Act, going by the specific provision in Section 28(2) of the POCSO Act. In fact, the offence of rape committed on a minor aged below 12 years would attract Section 376 of the IPC and the provisions of the POCSO Act.”

“…when the offences, which arise from the very same act, are tried together and the age of the victim is not proved, it is not as if the offence under the IPC charged against the accused would fall to the ground since no committal proceedings have been carried out under the Cr.P.C” 

When taking cognizance of a charge under the POCSO Act, the designated Special Court is empowered to try any offence, charged at the same trial. Otherwise, every trial under the POCSO Act will have to wait till the committal proceeding is over and that would defeat the very purpose of the enactment which envisages speedy disposal of the cases.

 Court further observed that,

It cannot be the position that once the age is not proved, the offence under Section 376 would fail for the reason of no committal proceedings having been taken under the CrPC.

Analyzing further, the High Court expressed that the charge, though with specified dates was explicit and of continued sexual assault of the penetrative kind on the victim by the accused, who was in the status of her guardian.

Mere irregularity in charge does not prejudice the accused so long as he was aware of what was expected to be defended.

Bench also further referred to a quote from the Division Bench of the Kerala High Court, Surendran v. State, 2021 (3) KLT 205.

Contention:

No specific statement by PW 1 as to a penetrative sexual assault having been committed on her.

Court’s view:

High Court rejected the above contention since the victim had spoken of the repeated acts committed on her in graphic detail. She even spoke of herself being subjected to such acts repeatedly on a day and continuously on several days.

We do not think that at every point, when repeated penetrative sexual assault is alleged, there should be a graphic description by the victim, in Court, of the details of such assault.

 Additionally, the High Court expressed that,

In addition to the trauma of being subjected to a penetrative assault, that too by a person far older in age and having the status of a guardian, the Courts cannot but insist on the trauma being re-visited when examined in Court for the purpose of a successful prosecution. However, that cannot lead to an insistence that when continuous and repeated sexual assault forms the gravamen of the accusation; the witness should be called upon to state every detail of each of such traumatic instances of abject depravity.

Victim a credible witness

Court noted that the essentials of repeated sexual molestation and the manner in which it was carried out had been consistently stated by the victim at the initial stage to the police, who rescued her from the streets and then to the Doctor and the Magistrate; which also had been deposed before the Court, hence there was no question of adverse inference being drawn.

Mental state of the mother, a shame on society, is quite understandable from the stress of having been abandoned, with three children and no means of food or shelter; for which alone the children were subjected to physical, mental and sexual torture. No mother can remain sane in the said circumstances.

 Medical Evidence

As per the medical examination, it was revealed that the prosecutrix had been habituated to sexual act, definitely it corroborated the testimony given by her.

Conclusion

In view of the above stated facts and evidence produced on record, High Court found that the victim was subjected to repeated rape by the accused that too of the penetrative kind.

Though the age of the victim was not proved, she was a school going child, temporarily kept away from her studies. 

On the question of charge, under POCSO Act, since the age of the victim was not proved, the accused had to be acquitted of the charges under the POCSO Act. Hence there could not be a conviction under Section 376(2) IPC.

Though the offence of rape was proved and therefore the accused was liable to be convicted under Section 376(1).

While partly allowing the appeal, the accused was given maximum sentence of life imprisonment. [Madhu v. State of Kerala, 2021 SCC OnLine Ker 3561, decided on 23-09-2021]


Advocates before the Court:

For the appellant/accused:

Sri K.M. Firoz

Smt. M. Shajna

Sr iP.C. Muhammed Noushiq

For the Respondent/Complainant/State:

By Public Prosecutor Smt. Sheeba Thomas

Case BriefsSupreme Court

Supreme Court of India: The Division Bench of Navin Sinha and R. Subhash Reddy, JJ., reiterated the value of ocular evidence while reversing the acquittal of the accused.

Instant appeal arose from an acquittal order reversing the conviction of respondents 1 to 4 under Sections 302, 34, 120 B of the Penal Code, 1860 sentencing them to life imprisonment and 15 days imprisonment under Section 135(1) of the Bombay Police Act.

The deceased was assaulted while he was returning on a motorcycle with PW-2 who was the pillion rider.

Acquittal was premised on the reasoning that the evidence of the eye-witnesses PW-2 and PW-10 was inconsistent with the medical evidence, regarding the nature of injuries vis-à-vis the weapons of offence.

High Court erred in the appreciation of evidence by failing to take note that the iron rod had a sharp edge by which the injuries on the deceased were possible. It is only if the medical evidence was totally inconsistent with the ocular evidence, the former was to be given precedence.

Analysis, Law and Decision

Bench stated that it was not disputed that PW-2 who was accompanying the deceased on the motorcycle, took him to the hospital.

FIR was lodged barely hours later naming the respondents. There was no time for the witness to consider and ponder for naming the accused except to state the truth.

The respondents were not strangers, but were well known to PW­2 and the deceased. PW­12 deposed that the respondents had threatened the deceased earlier also and were compelling him to withdraw the case and would also demand money from him because of which the deceased had shifted from the locality where they all they lived earlier.

Court stated that there is evidence about the availability of light near the place of occurrence. Even otherwise, that there may not have been any source of light was hardly considered relevant in view of the fact that the parties were known to each other from earlier.

Bench expressed that, Criminal jurisprudence developed in this country recognizes that the eye sight capacity of those who live in rural areas is far better than compared to the town folks. Identification at night between known persons is acknowledged to be possible by voice, silhouette, shadow, and gait also. 

Court relied on Nathuni Yadav v. State of Bihar, (1998) 9 SCC 238 with regard to the identification in the dark.

Supreme Court expressed that it is only in a case where there is a gross contradiction between medical evidence and oral evidence, and the medical evidence makes the ocular testimony improbable and rules out all possibility of ocular evidence being true, the ocular evidence may be disbelieved.

In the present matter, Court found no inconsistency between the ocular and medical evidence.

High Court grossly erred in appreciation of evidence.

Conclusion

The acquittal by the High Court was based on misappreciation of the evidence and the overlooking of relevant evidence thereby arriving at a wrong conclusion.

Further, the Court stated that the present case was not where two views were possible or the credibility of the witnesses was in doubt. Neither was it a case of a solitary uncorroborated witness.

Conclusion of the High Court was therefore held to be perverse and irrational.

Therefore, in the nature of the assault, Section 304 Part II, IPC has no application.

Supreme Court directed respondents 1 to 3 to surrender within 2 weeks and Director General of Police, State of Gujarat shall take all necessary steps to apprehend the absconding, fourth accused and bring him to justice.

In view of the above, appeal was allowed. [Pruthviraj Jayantibhai Vanol v. Dinesh Dayabhai Vala, 2021 SCC OnLine SC 493, decided on 26-07-2021]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Manmohan and Sangita Dhingra Sehgal, JJ., dismissed a criminal leave petition filed by the State against the order of the trial court whereby the respondent, who was accused of raping the prosecutrix-victim, was acquitted.

The respondent was charged under Sections 363, 366 and 376 IPC along with Section 4 of the Protection of Children from Sexual Offences Act, 2012, for the aforementioned offence. The father of the prosecutrix had filed a report with the police that her daughter was missing. Subsequently, the prosecutrix made a phone call to her friend after which she was recovered. She disclosed that the accused had committed wrong acts with her and abandoned her. The accused stood trial under charges as mentioned above. The trial court was of the view that the prosecutrix was not a credible witness and, accordingly, acquitted the accused. Aggrieved thereby, the State filed the present petition.

Aashaa Tiwari, APP appearing for the State, contended that the prosecutrix had “by and large” supported the case of the prosecution and had specifically named the respondent-accused in her statements.

The High Court noted that the prosecutrix was the most material witness in the case; however, her testimony did not inspire confidence as it was in direct conflict with the case put forth by the prosecution. The Court found that, firstly, the place of incident, i.e.,“Hotel Shalimar” as told by the prosecutrix was not found to be in existence. Secondly, the prosecutrix had categorically denied staying at the “Sharda Hotel” contrary to the prosecution’s case and evidence on record. Thirdly, the manner in which prosecutrix stated to have been recovered was contrary to the prosecution’s case. Also, no independent witness was examined by the prosecution to corroborate the story of the prosecutrix. Consequently, the Court held that in the absence of any evidence corroborating the testimony of the prosecutrix, the same could not be relied upon to convict the respondent-accused as it was full of contradictions.

In such view of the matter the Court held that despite the medical evidence confirming that the hymen of the prosecutrix had been freshly torn, there was no evidence to link the respondent-accused with the incident. Accordingly, the High Court upheld the order of the trial court acquitting the respondent. [State v. Rehan, 2020 SCC OnLine Del 172, decided on 21-01-2020]

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Sangita Dhingra Sehgal and Siddharth Mridul, JJ. dismissed a petition against trial court’s order acquitting the accused of offences punishable under Sections 363, 366, 376 and 506 IPC along with Section 5(1) and 6 of the Protection of Children from Sexual Offences Act, 2012.

The accused was alleged to have forcefully made sexual relation with the prosecutrix. An FIR was filed under the above-said sections and the matter was committed to trial. After appreciating the entire evidence, the trial court acquitted the accused.

Ravi Nayak, Additional Public Prosecutor for the State assailed the order arguing that it was based on conjectures and surmises. Per contra, Rajeev Mohan, Advocate for accused supported the impugned order.

After perusing testimony of the prosecutrix in detail along with other evidence, the High Court found that it was full of inconsistencies, concealment, improvements and exaggerations which cast a shadow of doubt on the prosecution case. Furthermore, the case was not at all supported by the medical evidence and FSL report. It was held that the prosecution failed to establish the charges against the accused. Reliance was placed on  Muralidhar v. State of Karnataka, (2014) 5 SCC 730 for the proposition that the Appellate Court may interfere in order of acquittal only when there are compelling reasons to do so. However, the present was not one of such cases. Therefore, the appeal filed by the State was dismissed. [State (NCT of Delhi) v. Manish, 2018 SCC OnLine Del 13291, Order dated 07-12-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: A Division Bench comprising of Rajendra Kumar Srivastava and S.K. Gangele, JJ. allowed the appeal and acquitted the appellant who was convicted under Section 302 read with Section 34 IPC.

The appellant was convicted for the murder of the deceased and awarded life sentence. It was alleged by the PWs 2 and 3, the brother and mother of the deceased, that the appellant had a farsa with which the deceased was attacked and he, therefore, died on the spot. The order of conviction and sentence passed by the trial court was challenged in the instant appeal.

The High Court noted that the eye-witnesses had deposed that the appellant was armed with a farsa and had inflicted injuries upon the deceased. However, in the postmortem report, there were no signs of any such injury that could have been caused by a sharp weapon. The doctor, who conducted the postmortem also deposed that he did not notice any such injury. Relying on Mahavir Singh v. State of M.P., (2016) 10 SCC 220, the Court held that where the medical evidence goes so far that it completely rules out the possibility of the ocular evidence being true, then such ocular evidence may be disbelieved. Holding thus, the conviction and sentence of the appellant under Section 302 read with Section 34 IPC was set aside. The appeal was thus, allowed. [Shiv Prasad Kol v. State of M.P., 2018 SCC OnLine MP 414, dated 05-07-2018]

Case BriefsSupreme Court

Supreme Court: Stating the importance of medical evidence, especially in a murder trial, the Bench of P.C. Ghose and R.F. Nariman, JJ said that where the medical evidence is such that it does not give any clear opinion with respect to the injuries inflicted on the body of victim or deceased, as the case may be, the possibilities that the injuries might have been caused by the accused are also ruled out. Such medical evidence is also very important in assessing the testimony of eye-witnesses and in determining whether the testimony of eye-witnesses can be safely accepted.

In the present case, the accused had killed his close relative in a field allegedly over a land dispute, the High Court of Bombay had acquitted the accused as the prosecution had failed to prove the guilt of the accused beyond reasonable doubt. Upholding the decision of the High Court, the Court said that apart from contradictory testimonies of the witnesses, non-examination of the material witness on whose field the crime was committed, unexplained 6 days delay in lodging FIR; no opinion given by doctor in the post-mortem report or his deposition about the cause of death raise substantial doubt in the prosecution story. The Court said that the unfortunate man succumbed to injuries but the substantial doubts, mentioned above, confer a right upon the accused-respondents to be held not guilty.

Emphasising upon the importance of expert opinion, the Court said that expert’s opinion should be demonstrative and should be supported by convincing reasons. Court cannot be expected to surrender its own judgment and delegate its authority to a third person, however great. If the report of an expert is slipshod, inadequate or cryptic and information on similarities or dissimilarities is not available in the report of an expert then his opinion is of no value. Such opinions are often of no use to the court and often lead to the breaking of very important links of prosecution evidence which are led for the purpose of prosecution. [Machindra v. Sajjan Galpha Rankhamb, 2017 SCC OnLine SC 443, decided on 19.04.2017]