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The National Human Rights Commission, NHRC, India, in order to ensure effective prosecution leading to conviction in cases of sexual assault on women, has prepared a ‘Standard Operating Procedure (SOP) on Collection & Processing of scientific/forensic evidences.’ The SOP, prepared in consultation with medical experts, has been sent to the States/UTs for issuing instructions to all the officers concerned for implementation.

The SOP has been divided into seven sections of key operating procedures. These are: victim care, promptness and examination, collection of samples, collection of blood and urine samples, genital and anal evidence, handing over samples to FSL and general. It can be accessed through the link: https://nhrc.nic.in/acts-and-rules/standard-operating-procedure-sop-collection-processing-scientificforensic-evidences

The Commission has come out with this SOP after it observed that in many cases of alleged rape and sexual assault, there is a substantial delay in medical examination, collection & processing of scientific/forensic evidences of the victim of sexual assault. The exhibits are forwarded to the Forensic Science Laboratory, FSL after much delay and by that time, the samples deteriorate/autolyse and become unsuitable for examination. This delay adversely affects the investigation for effective prosecution leading to a conviction.

The NHRC has expressed the hope that this Standard Operating Procedure if implemented in letter & spirit by the concerned authorities, will definitely help improve the system of medicolegal investigation in cases of sexual assault on women in the country.


National Human Rights Commission

[Press Release dt. 16-12-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Narayan Singh Dhanik, J., allowed a Criminal Jail Appeal which was filed from the jail against the judgment whereby the appellant had been convicted for the offences under Section 376/511 Penal Code, 1860 and Section 6 of the POCSO Act and was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs 25,000 for the offence under Section 6 of the POCSO Act.

The complainant had filed an FIR against the appellant alleging that he had attempted to commit rape on the two and half year’s old daughter of the complainant and had committed sexual assault on her. He further alleged that when he went looking for his daughter along with a companion he found the appellant while he was indulged in committing the alleged offence and took him to the police station. On conclusion of the trial, appellant was convicted and sentenced. Thus, the instant appeal was filed by the Amicus Curiae, Raman Kumar Sah on behalf of the appellant submitting that the prosecution had failed to prove the case against the appellant. He further contended that the victim had not identified the appellant nor the victim in her testimony had named the appellant and that the facts elicited during the cross-examination of the complainant and the companion along with him were totally contrary to the prosecution story. It was further contended that the mother of the victim did not support the prosecution story and was declared hostile. Per contra, the AGA for the State, Manisha Rana Singh submitted that prosecution had produced sufficient and credible evidence and the trial court had rightly convicted and sentenced the appellant.

The Court while allowing the appeal set aside the judgment and order of the Trial Court. The Court assessed the medical examination report of the victim which disclosed that the urethral meatus & vestibule, labia major and labia minor of the victim were found normal and no tear or swelling in the private parts was found and Hymen perineum of the victim was also found intact but the doctor had further stated that a little redness was present in the outer surface of the hymen of the victim and the presence of dried blood stains was also detected on her private parts and these conditions led to opine her that the attempt of sexual intercourse with the victim was made. It accepted all the contentions given by the Amicus Curiae and opined that the opinion of the doctor alone was not enough to connect the accused-appellant with the alleged crime in view of the material on record and in the absence of any credible evidence. The Court while quashing the conviction and sentence stated that,

            “In criminal cases, conviction cannot be based upon morality and there must be admissible and credible evidence to base conviction and moreover it is well-settled canon of criminal jurisprudence that ‘fouler the crime higher the proof’ and mandate of law is that the prosecution has to prove the charges beyond all reasonable doubt. A few bits here and a few bits thereon which prosecution relies cannot be held to be adequate or connecting the accused with the crime in question.”[Akash Kumar v. State of Uttarakhand, 2020 SCC OnLine Utt 562, decided on 28-09-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of N.V. Anjaria and Ashok Kumar C. Joshi, JJ. addressed a petition wherein Writ of Habeas Corpus was sought in order to produce the daughter of the petitioner.

Matter:

Petitioner’s minor daughter was taken by respondent 4 when she was doing some labour work at a factory. Respondent 4 was also engaged in working at the same factory. Petitioner had lodged an FIR for offenses punishable under Sections 363 and 366 of Penal Code, 1860 as well as Section 18 of Protection of Children from Sexual Offenses Act, 2012., but no satisfactory reply came from the police.

In view of the above, petitioner approached the High Court through the present petition.

Further on issuance of order by this court, respondent-3 /Police was asked to take steps to trace the corpus. Later the proceedings kept adjourning due to the COVID-19 Outbreak and consequential suspension of regular court working.

In the meantime, Police succeed in tracing the minor girl with respondent 4. Girl and Respondent 4 were found to be in Panvel Talk of Ahmednagar District in the State of Maharashtra. On 18-04-2020 corpus was brought back to Gujarat. It was found that respondent 4 had taken the girl to various different places during the period.

As the Corpus was in police custody, request was made by the Additional Public Prosecutor to get the matter listed so that the girl could be produced before the Court. Thus the matter after being listed by Registry came up before the Court.

Permission was granted for the corpus to be produce through video-conferencing as, in the present circumstances it was not possible.

According to the Police Report it was noted that the girl was made to go through medical examination and the report for the same submitted to the Court. Respondent 4 had already been booked pursuant to the FIR and events thereafter.

According to the statement recorded by police, it was stated by the Corpus that she was willing to go her parent’s house.

Bench wanted to make sure of the fact that the girl was saying the above out of her own will and thus she was produced before the Court wherein the same question of her willingness was asked and Corpus stated that she was willing to go. Parents of the Corpus were also asked about their willingness to take their daughter to which their response was in positive.

Court directed the parents of the Corpus to take proper care their minor daughter, in view of the stated corpus was permitted to go with her parents. Police authorities were also directed to ensure safe passage of the corpus and her parents.

To ensure the well being of the Corpus, authorities concerned were erected to depute a Social Welfare Officer from the District and the said officer shall visit the house of corpus and report before ether competent authority after one month.

Petition disposed in the above terms. [Atubhai Nanjibhai Baraiya v. State of Gujarat, 2020 SCC OnLine Guj 506 , decided on 21-04-2020]

Case BriefsHigh Courts

Chhattisgarh High Court: Prashant Kumar Mishra, J. while allowing a writ petition, quashed the order of removal from service passed against the petitioner.

The petitioner (since deceased) was posted as a security guard at the bungalow of one of the Ministers of the Government of Chhattisgarh. On the relevant date, he was found to have consumed liquor and attend the duties in that condition, creating nuisance/ruckus. The Panchnama was prepared in the presence of five policemen and upon finding that the petitioner was not in a position to attend the duties, he was sent back in a Government vehicle to the security company’s headquarter. The petitioner was chargesheeted. The Enquiry Officer found all charges proved against the petitioner and punishment of removal from service was imposed upon him.

Admittedly, the petitioner was not sent for medical examination. Attending duties after having consumed liquor had been proved against the petitioner, not on the basis of any chemical or other expert opinion but only on the basis of oral testimony of the fellow constables.

The important issue falling for consideration before the High Court was whether a delinquent employee can be subjected to a major penalty of removal from service on the charge of attending duties in a drunken condition, when, admittedly, he was not sent for medical examination to prove the consumption of alcohol.

Relying on Bachubhai Hassanalli Karyani v. State of Maharashtra, (1971) 3 SCC 930 and Munna Lal v. Union of India, (2010) 15 SCC 399, the High Court allowed the instant writ petition. It was held: “Inebriation of the petitioner was sought to be proved on the basis of Panchnama and oral evidence, and not by requiring the petitioner to undergo any medical examination. Such procedure for proving the fact of inebriation while on duty would not be a prudent manner of proving the charge.”

However, the petitioner died during the pendency of the petition. Therefore, consequent upon quashing of the order of removal from service, the entire benefits including arrears of salary till the date of the petitioner’s death and thereafter, the entire pensionary benefits were directed to be paid to his legal heirs. [Kamleshwar Prasad Trivedi v. State of Chhattisgarh, 2019 SCC OnLine Chh 111, decided on 17-10-2019]

Case BriefsHigh Courts

Bombay High Court: A Bench of Bharati H. Dangre, J. allowed the termination of a pregnancy on grounds of it being a risky one as ‘multiple cardiac complications’ in the baby were expected.

Petitioner 1 was subjected to a medical examination and according to the opinion of the medical experts, the pregnancy was asked to be terminated since it posed risk and if the baby was given birth, it would have required multiple surgeries with high morbidity and mortality rate.

Further, the matter was directed to be placed before the Court so that the intended parents apprised of the report and would have accorded their consent. The intending father made a statement that he had gone through the report and noting the report and opinion of the doctors he gave his consent to the termination of pregnancy.

Thus, the High Court on noting the complications as stated by the doctors, directed for the termination of pregnancy on completing necessary formalities. [Kiran Kailas Gavhande v. Union of India, 2018 SCC OnLine Bom 7463, dated 28-12-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Sanjeev Sachdeva, J. dismissed a revision petition filed against the judgment of the trial court whereby it had discharged the accused of offences under Sections 75 and 79 of the Juvenile Justice Act, 2015 and directed that she would face trial under Section 323 IPC.

The allegation against the respondent was that she had employed and maltreated the victim. Since there were no documents available of proof of age of the victim, it was ascertained through medical examination. The medical examination board opined the age of the victim to be between 18 to 20 years. The trial court considering the age determined as 18 to 20 years, opined that the victim was not a child as defined under the JJ Act and as such Sections 75 and 79 would not be attracted. Aggrieved thereby, the State preferred the instant appeal.

The High Court perused the record and was of the view that there was no infirmity in the view taken by the trial court. Keeping in view the fact benefit of doubt has to go the accused, the age would have been taken to be the higher of the range as determined by the medical examination while further keeping in view the margin of error 1 to 2 years. In Court’s opinion, the victim was not a minor when the alleged offence was stated to have happened. In such view of the matter, the judgment impugned was upheld and the appeal was dismissed. [State v. Rama Dhall,  2018 SCC OnLine Del 12540, decided on 22-11-2018]

Case BriefsSupreme Court

Supreme Court: Reacting upon the judicial orders passed by Justice C.S. Karnan against the Chief Justice of India and 7 Supreme Court jusges, the 7-Judge Bench of Jagdish Singh Khehar, CJ and six senior most Judges of the Supreme Court, Dipak Misra, J. Chelameswar, Ranjan Gogoi, Madan B. Lokur, PC Ghose and Kurian Joseph, JJ, said that the tenor of the press briefings, as also, the purported judicial orders passed by Justice C.S. Karnan, prima facie suggest, that he may not be in a fit medical condition, to defend himself, in the present proceedings and hence he should be medically examined, before proceeding further.

The Court directed the Director Health Services, Government of West Bengal, to constitute a Board of Doctors from Pavlov Government Hospital, Kolkata, to examine Justice C.S. Karnan, and  conduct the examination on 4.5.2017.  Listing the matter on 09.05.2017, the Court directed the Medical Board to submit the report on or before 8.5.2017.

The Court also refrained all Courts, Tribunals, Commissions or Authorities, from taking cognizance of any orders passed by Justice C.S. Karnan, after the initiation of the proceeding on 8.2.2017.

Directing Justice C.S. Karnan to furnish his response to the notice issued to him on 8.2.2017, on or before 8.5.2017 and if he fails to do so it shall be presumed, that he has nothing to say in the matter.

Justice Karnan, who is a sitting judge of Calcutta High Court, had recently barred the members of the Bench in the present contempt proceedings, along with R. Banumathi, J. from travelling outside India and had directed them to appear before him. [IN RE: JUSTICE C.S. KARNAN, 2017 SCC OnLine SC 514, order dated 01.05.2017]

Case BriefsSupreme Court

Supreme Court: In the case where the appellants were involved in at least 24 cases of various offences allegedly committed between 1988 and 1995 and one was alleged to have committed murder and robbery in the year 1988, the Court refused to rely upon the opinion of the medical board in determining the age of the appellants, in the absence of the other cogent evidence, so as to give benefit under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000. The Court said that the purpose of Juvenile Justice Act, 2000 is not to give shelter to the accused of grave and heinous offences.

As per the medical report submitted in the year 2016, the appellants would have been born in the year 1979. The Court said that, going by the report, one accused would have been 9 years old at the time of commission of his first offence in the year 1988 and the other would have been 14 at the time of commission of his first offence in the year 1993. The bench of Dr. A.K. Sikri and R. Banumathi, JJ added that had it been so, when the appellants were produced in those cases the appellants would have been considered as ‘children’ by the very appearance. They would have been dealt with accordingly by the concerned juvenile court and the matters would not have been kept pending till this date. Hence, the opinion of the Medical Board determining the age of the appellants as 35-40 years in May, 2016 cannot be relied upon.

Stating that medical evidence as to the age of a person though a very useful guiding factor is not conclusive and has to be considered along with other circumstances, the Court said that a blind and mechanical view regarding the age of a person cannot be adopted solely on the basis of the medical opinion by the radiological examination. The Court hence, rejected the plea of juvenility of the appellants in the absence of other cogent evidence. [Mukarrab v. State of U.P., 2016 SCC OnLine SC 1413, decided 30.11.2016]