Karnataka High Court
Case BriefsHigh Courts

   

Karnataka High Court: While deciding the instant application seeking regular bail for offences under the provisions of Prohibition of Child Marriage Act, 2006* and Protection of Children from Sexual Offences Act, 2012 (POCSO), the Bench of Rajendra Badamikar, J., held that POCSO Act is a special legislation, and it overrides any personal law.

Facts and Contentions: The accused/petitioner is the husband of a 17-year-old Muslim girl, who came to know about her pregnancy when she visited a Primary Health Centre for a check-up. A complaint was thus lodged against the accused/petitioner by the Sub-Inspector of R.K. Puram Police Station, based on information furnished by the Medical Officer who examined the victim-wife. It was alleged that the victim’s marriage to the petitioner was solemnized when she was still a minor. Sexual intercourse with her husband resulted in her pregnancy.

The complaint was filed under Sections 9 and 10 of the Prohibition of Child Marriage Act and Sections 4 and 6 of the POCSO Act. The petitioner’s application for bail was rejected by the Sessions Judge, therefore, he approached the High Court in the instant petition.

The petitioner’s counsel argued that under Muslim Law, the consideration for marriage is puberty and the normal age of puberty is treated as 15 years; hence, it was contended that no offence was committed under the provisions of POCSO Act and Prohibition of Child Marriage Act, 2006.

  • Decision of the Court: Perusing the facts and contentions of the case, the Court held as follows: The Court held that POCSO, being a special law, will override any personal law and the age of consent for sexual activity is 18 years.

  • However, the Court noted that the victim-wife is 17 years old and capable of understanding things. Even though she asserted that the marriage with the accused/petitioner was solemnized without her consent, there is no evidence showing that the victim raised any objections. Hence, there was prima-facie evidence of the victim being a consenting party and that there is no dispute regarding the marriage between the accused/petitioner and the victim-wife. The Court also took into consideration that the victim now being pregnant required care and the petitioner if enlarged on bail could take care of herUnder these circumstances the Court granted bail with strict conditions.

[Aleem Pasha v. State of Karnataka, 2022 SCC OnLine Kar 1588, decided on 12-10-2022]


Advocates who appeared in this case :

Basavanna M.D., Advocate, for the Petitioner;

K. Nageshwarappa, HCGP, for the Respondent.


*Editorial Note: The text of the High Court’s Judgment mentions “Child Marriage Restraint Act”, however, the Statute involved in the petition is Prohibition of Child Marriage Act, 2006. The Child Marriage Restraint Act, 1929 has been repealed.

**Sucheta Sarkar, Editorial Assistant has prepared this brief.

Punjab and Haryana High Court
Case BriefsHigh Courts

   

Punjab and Haryana High Court: While dismissing the present appeal preferred by the appellant against judgment dated 09-08-2012 and the order dated 13-08-2012 of the trial court whereby the present appellant was held guilty of kidnapping, raping and murdering a nine-year-old girl and was sentenced rigorous imprisonment for life, Sureshwar Thakur and N.S. Shekhawat, JJ., upheld the order and said that the child rape cases are the cases of worst form of lust for sex, where children of tender age are not even spared in the pursuit of sexual pleasure.

The accused was convicted for the commission of offence under Sections 363, 376(2)(f), 302 and 365 of the Penal Code, 1860.

Facts:

The FIR in the instant case was lodged by father of the victim who was a laborer by occupation. The accused also was a laborer who used to work with him about 2-3 years ago. On 30-04-2009, the accused came to the complainant’s house and kidnapped his minor daughter aged 9. The accused took her away on his bicycle which was seen by the complainant’s son.

On 1-05-2009, in the early morning, the complainant came to know that the dead body of his daughter was lying in the fields in nude condition. The complainant raised the suspicion that she had been raped and then murdered by way of strangulation. Thereafter, the dead body was sent to General Hospital, for conducting a postmortem examination. On 8-05-2009, the accused was apprehended by the police.

The Medical Board noticed several injuries on the body of the deceased. It was examined that the cause of death in the instant case was asphyxia due to throttling and multiple abrasions and swellings were noticed on the entire body, including private parts.

Observation and Analysis

The Court said that the testimonies of the complainant and his son cannot be rejected on the ground that they were closely related to victim. In fact, it was stated by the Court that the son was the most natural witness and his presence near the place of occurrence was natural.

The Court observed that the deceased , aged 9, was not only brutally killed but was also subjected to forceful rape in the most barbaric manner which was evident from the injuries suffered by her on her person.

The Court, taking responsibility to provide proper legal protection to minor victims, further said that “the child rape cases are the cases of worst form of lust for sex, where children of tender age are not even spared in the pursuit of sexual pleasure. There cannot be anything more obscene, diabolical and barbaric than this.”

The Court said that according to some surveys, a rise in child rape cases have been noticed and due to the social stigma, many of the rape cases are not even brought to light. To provide proper legal protection to the minor rape victims, the Courts are also equally responsible as the parents and guardians of children are responsible for their care and protection.

The Court held that having played with the life of a minor child, which is proved by the prosecution by leading unimpeachable and cogent evidence, the Court did not find any ground to interfere with the impugned judgment and order passed by the trial court and upheld the same.

[Manoj Kumar v. State, CRA-D-825-DB-2012, decided on 26-09-2022]


Advocates who appeared in this case :

Mr. Rahul Vats, Advocate, for the Appellant;

Mr. Anmol Malik, Deputy Advocate General, Haryana, Advocate, for the State.


*Kriti Kumar, Editorial Assistant has reported this brief.

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: While deciding the instant petition, Sanjay Kumar Dwivedi, J., directed the State Legal Services Authority to ensure that the State Government compensates the minor gang rape victim having 100% visual impairment, an amount of Rs. 10 Lakh and directed the State Government to establish Rehabilitation Centre for such victims.

The instant petition is based on an FIR lodged against the accused. The charge-sheet was filed before the court of the Additional Judicial Commissioner, Special Judge under Sections 376(2)(f)/376(2)(i)/376(3) of the Penal Code and Sections 4 and 6 of the Protection of Children from Sexual Offences (‘POCSO’) Act, 2012.

Facts:

A blind minor girl was gang raped in the year 2018 by her own family members, including her brother and uncle. The petition has been filed after finding her being pregnant praying for a shelter home to her for her safety and security. The prayer has also been made for direction of constituting a Medical Board for termination of the fetus and to appoint a senior female medical practitioner and social worker to take care of minor.

Seeing the nature of vulnerability of the minor, the Court, on 08-09-2022, directed the Rajendra Institute of Medical Sciences (‘RIMS’) Director to constitute a Medical Board to examine the minor and to find out whether pregnancy can be terminated or not.

RIMS Report: “The termination of pregnancy at this stage is associated with the inherent risks of the complications of second trimester termination of pregnancy.” The Board stated that termination of 28 weeks pregnancy is risky as the life of minor can be in danger.

RIMS further brought to the notice of the Court the mandate of Section 3 of the Medical Termination of Pregnancy Act, 1971 which stated that since the length of the pregnancy of the victim is over 28 weeks, termination of fetus is not permissible.

Observation and Analysis:

The Court considered the Medical Board report, which clearly mentioned that the termination of pregnancy is risky. The Court decided not to put the life of minorin danger. Further, the Court stated that this situation could have been avoided had the decision been taken at the appropriate time when the occurrence took place.

The Court further stated “Rape is a crime not only against a woman but against humanity at large as it brings out the most brutal, depraved and hideous aspects of human nature. It leaves a scar on the psyche of the victim and an adverse impact on society”.

The Court, in the interest of the victim and the unborn child, issued the following directions:

  1. The Deputy Commissioner will make arrangements to provide proper diet, medical supervision and medicines as may be necessary to the victim throughout the remaining part of her journey of pregnancy. When the time for delivery arrives, proper medical facilities be made available for the safe delivery of the child.
  2. The “A” shall be put in any proper rehabilitation Centre of the Government of Jharkhand or being operated under the scheme of the Union of India.
  3. The State Legal Services Authority shall ensure that the State Government shall pay an amount of Rs. 10 Lakh as compensation to the victim, which will be over and above the compensation amount which will be decided by the trial court at the conclusion of the trial in underlying proceedings. This amount has to be deposited in any nationalized bank in the name of “A” and the Deputy Commissioner will ensure to open the bank account in the name of the victim for same purpose.
  4. As soon as the newborn baby gains her mental balance and equilibrium, he/she will be allowed admission to a proper class in an appropriate school.
  5. Considering that there is no rehabilitation Centre for such victim in Ranchi, the Chief Secretary of the Government of Jharkhand, Secretary, Department of Social Welfare, Women and Child Development, Government of Jharkhand and the Deputy Commissioner, Ranchi will ensure to create such rehabilitation Centre at Ranchi so that the rehabilitation Centre in the capital city may help such victim in future.

[“A” v. State of Jharkhand, 2022 SCC OnLine Jhar 983, decided on 14-09-2022]


For the Petitioner: Mr. Shailesh Poddar, Advocate

For the State: Mr. Kishore Kumar Singh, S.C.

Mr. Vishnu Prabhakar Pathak, A.C. to S.C.

For the RIMS: Dr. Ashok Kumar Singh, Advocate

Mr. Shivam Singh, Advocate

Ms. Madhu Priya, Advocate

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a case where protection was sought by a Muslim couple anticipating danger from the girl’s family (‘respondent 4 and 5′), Jasmeet Singh, J. directed State to grant protection to them as the girl (‘petitioner 1′) has attained puberty and willfully consented to the marriage with the boy (‘petitioner 2′).

The petitioners, Mohammedans by religion, were in love with each other and got married in accordance with Muslim rites and rituals by Maulana Imtiyaz of Jokihat Masjid, District Aauriya, Bihar. Respondents 4 and 5 are parents of the girl and opposing the marriage of the petitioners and have registered an FIR under Section 363 of Penal Code, 1860 (‘IPC’) and Section 6 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO’) against petitioner 2 . The instant petition was filed seeking directions for protection to the petitioners.

Petitioner 1 submitted that she was regularly beaten by her parents at home and the parents tried to forcibly marry her to someone else. It was also submitted that petitioner 1 is pregnant and the petitioner 1 and 2 are expecting a child together. The state submitted that the petitioner was only 15 years and 5 months on the date of the marriage, thus justifying the charges alleged.

The Court noted that as per Mohammedan Law, a girl who had attained the age of puberty could marry without consent of her parents and had right to reside with her husband even when she was less than 18 years of age and thus otherwise a minor girl.

Reliance was placed on Imran v. State of Delhi, (2011) 10 SCC 192 to prove the point that POCSO is an Act for protection of children below 18 years from sexual abuse and exploitation and will apply to Muslim law. However, the Court clarified that this case cannot be relied on, in terms of the facts of the present case.

The Court clarified stating “There was no marriage between the prosecutrix and the accused. In fact, in that case sexual relationships were established prior to marriage. Post establishing the physical relationship, the accused had refused to marry the prosecutrix. It was on this basis that POCSO had been applied to the facts of that case. The object of the POCSO Act states that the Act is aimed at ensuring the tender age of the children and ensuring they are not abused and their childhood and youth are protected against exploitation. It is not customary law specific but the aim is to protect children under the age of 18 years from sexual abuse.”

The Court further noted that present is not a case of exploitation but a case where the petitioners were in love, got married according to Muslim laws, and thereafter, had physical relationships, thus giving no strength to the charges alleged under POCSO.

The Court also observed that in the present case, the environment in the house of petitioner 1 is hostile towards her and her husband as per allegations levelled by petitioner 1. Thus, the petitioners being lawfully wedded to each other cannot be denied the company of each other which is the essence of the marriage. If the petitioners are separated, it will only cause more trauma to the petitioner 1 and her unborn child.

The Court directed respondent 1 to 3 to ensure safety and protection of the petitioners.

[Fija v. State Govt NCT of Delhi, 2022 SCC OnLine Del 2527, decided on 17-08-2022]


Advocates who appeared in this case :

Mr. Arvind Singh, Mr. AK Mishra, Advocates, for the Petitioner;

Ms. Rupali Bandhopadhyay, ASC with Mr. Akshay Kumar, Mr. Abhijeet Kumar, Advocates with ASI Harvinder Kaur, PS Dwarka North, Advocates, for the Respondent.


*Arunima Bose, Editorial Assistant has put this report together.

Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: V. G. Arun, J., allowed medical termination of 28-week pregnancy of a 14-year-old girl.

The mother of the victim had approached the Court seeking permission to abort the victim's 28 weeks of pregnancy. Noticeably, the victim herein is a minor girl aged 14 years.

By its earlier order, the Court had directed the Superintendent of Medical College Hospital to constitute a Medical Board of competent medical practitioners to examine the victim and file a report before the Court.

Accordingly, the Medical Board, after examining the child, opined,

“Gestational age by Ultrasound is 27 weeks 5 days and correlated with clinical findings. Anguish caused by the continuation of pregnancy can be presumed to cause a grave injury to the mental health of 14-year-old unmarried girl. Hence Medical Board is recommending MTP.”

In the light of the suggestion of the Medical Board recommending medical termination of pregnancy (MTP) as continuation of pregnancy may cause grave injury to the mental health of the girl, the Court issued the following interim directions:

  • The petitioner is permitted to get the victim girl's pregnancy terminated at a Government Hospital.

  • On production of this order, the Superintendent of the hospital shall take immediate measures to constitute a medical team for conducting the procedure.

  • The petitioner shall file an appropriate undertaking, authorising the medical team to conduct the surgery at her risk.

  • If the baby is alive at birth, the hospital shall ensure that the baby is offered the best medical treatment available so that it develops into a healthy child;

  • If the petitioner is not willing to assume the responsibility of the baby, the State and its agencies shall assume full responsibility and offer medical support and facilities to the child, as may be reasonably feasible, keeping in mind the best interests of the child and the statutory provisions in the Juvenile Justice (Care and Protection of Children) Act, 2015.

[X v. Union of India, W.P.(C) No.26103 of 2022, decided on 16-08-2022]


Advocates who appeared in this case :

M/S. Babu Paul & Murali Manohar, Advocates, For the Petitioner.


*Kamini Sharma, Editorial Assistant has put this report together.

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: Addressing a case wherein a minor girl was subjected to sexual, Deepak Kumar Tiwari, J., held that,

In view of the changed definition of rape under Section 375 (b) of the IPC pari materia to Section 3(b) of the POCSO Act, sexual intercourse is not necessary to attract the ingredients of offence of rape or penetrative sexual assault.

An appeal was filed against the judgment passed by the Additional Sessions Judge whereby the appellant was convicted under Sections 363 and 366(A) of the Penal Code, 1960 and Section 6 of the Protection of Children from Sexual Offences Act, 2012.

Background

The mother of the prosecutrix had lodged an FIR stating that after coming back from work, her daughter (prosecutrix) (PW-2) informed her that she was having pain in her vagina.

Prosecutrix informed that the appellant took her to the dilapidated house and after laying her down on the ground, the appellant removed her underwear and thereafter committed sexual intercourse with her. In view of the said incident, an FIR was lodged by the mother.

Analysis and Decision

High Court noted that the prosecutrix a 5-year-old girl had deposed that the appellant took her to the dilapidated house and after laying her down disrobed her and also removed the clothes of her friend Dev, a minor.

Further, she stated that the appellant inserted his finger into her vagina and when she started weeping, the appellant left her. She narrated the whole incident to her mother and the mother found her private part swelled and red.

PW-4 examined the prosecutrix and found that the redness was present at the pelvic region and hymen was freshly torn and the tip of the finger could be entered into the vagina. She concluded that the injury was caused by a hard and blunt object.

Considering the definition of rape under Section 375(b) of the Penal Code, 1860 and also the corresponding pari materia Section 3(b) of the Protection of Children from Sexual Offences Act, 2012 defining penetrative sexual assault, as also Sections 4, 5, 5(m), 6 of the POCSO Act, it was observed that the Trial Court after evaluating the entire evidence in a proper manner, rightly convicted the appellant under Section 363 and 366 of the IPC and under Section 6 of the POCSO Act.

Hence, in view of the above, the trial Court’s decision was not liable to be interfered with.

The appeal was dismissed. [Ravi Khutiyare v. State of Chhattisgarh, 2022 SCC OnLine Chh 579, decided on 25-3-2022]


Advocates before the Court:

For Appellant: Shri A.K. Yadav with Shri Vikas Pandey, Advocate.

For Respondent: Ms. Smriti Shrivastava, Panel Lawyer.

Case BriefsHigh Courts

Meghalaya High Court: The Division Bench of Sanjib Banerjee, CJ and W. Diengdoh, J., addressed that, if the victim’s underwear was not taken down and the man merely rubbed himself on the victim’s crotch while she still wore her underpants, would that amount to commission of rape.

In the present matter, though the appellant had been found of having committed rape, no case of penetration in terms of Section 375 of the Penal Code, 1860 was made out.

In 2006, a complaint was lodged whereupon the minor victim was medically examined. On examination, it was found that the victim’s vagina was tender and red and her hymen was ruptured. The opinion rendered by the medical examiner was that the girl had been raped and was suffering from mental trauma.

In course of the examination-in-chief, the victim claimed that the appellant herein grabbed the victim and took the victim to a bed where he made the victim lie down before “he took his pant and he pulled my undergarments and then he raped me”.

However, in the cross-examination the victim had to say the following:

“… After the accused entered my house he caught hold of my hands, opened his long pants and mine, but he did not open my under wear, he then took me to the bed which was in the bedroom and then rape me. I did not scream for help when I saw the accused opened his under pant as I was scared of him. I did not feel pain after the accused had rape me. It is a fact that the accused person did not penetrate his male organ inside my vagina but he just rubbed from the top of my underwear. It is a fact that I was tutored by my mother before I came to the Court today”.

Appellant stated that, if the victim’s underwear was not taken down and the appellant merely rubbed himself on the victim’s crotch while she still wore her underpants, there would be no commission of any rape.

It was also asserted by the appellant that, considering that the appellant was of average intellect with no formal education, his confession must be regarded as having committed a wrong, but merely because his translated statement revealed that he had confessed to having committed rape, it would not imply that there was penetrative sex, particularly since the victim’s version was such that would rule out any element of penetration, which was the key to the commission of the offence of rape.

Bench stated that, in any event, by virtue of Section 375(c) of the Penal Code, when a person manipulates any part of the body of a woman so as to cause penetration into, inter alia, the vagina or urethra, the act would amount to rape.

Further, the Court added that, in the absence of the appellant herein establishing any alternative reason for the victim suffering the tenderness in her vagina or ruptured hymen or pain that she complained of in the context of the physical abuse that she was subjected to, merely because the victim may have said that she did not endure any pain at the relevant time may not absolve the appellant of his guilt.

Lastly, the Court concluded that it did not appear that there was no penetration in course of the appellant forcing himself on the victim.

Since the victim was a minor and since the appellant confessed that he lost control over himself and committed the offence, the punishment awarded to the appellant did not appear to be out of place.

In view of the above, the criminal appeal failed.[Cheerfulson Snaitang v. State of Meghalaya, 2022 SCC OnLine Megh 52, decided on 14-3-2022]


Advocates before the Court:

For the Petitioner/Appellant(s) : Mr. SD Upadhaya, Legal Aid Counsel

For the Respondent(s) : Mr. S Sengupta, Addl.PP with Mr. AH Kharwanlang, GA

Case BriefsDistrict Court

Court of Special Judge under the Protection of Children from Sexual Offences Act, 2012, Fort Greater Mumbai: Expressing that essence of a woman’s modesty is her womanhood, H.H. The Special Judge A.D.DEO, remarked that incidents of unwelcome, inappropriate touch by the male accused in the journey are very common sexual assault experience by every common woman travelling in public transport, but ignored by each one of them, thinking that there is no likelihood of coming across, the same assailant after the journey.

Accused was prosecuted for the offence punishable under Section 354-A of the Penal Code, 1860 and under Section 8 of the Protection of Children from Sexual Offences Act, 2012 and under Section 91 of the Rights of Person with Disability Act, 2016 for making unwelcome and explicit touch to two female co-passengers while travelling in handicap compartment of local train thereby committing sexual assault upon them.

 Details of incident


Informant was a minor victim 1 who was travelling as escort to her blind aunt i.e., victim 2 in handicap compartment of local train and they were going to attend a programme arranged by National Association for Blind.

Victim was the escort of PW-2, and they were travelling by local train from Badlapur to CSTM. As they wanted to go to Reay Road, they intended to change train at Kurla. When the Ghatkopar Station passed the informant, and her aunty went towards the right-side door.

It was stated that the informant was standing near the door, at that time she heard the voice of her aunt and saw that she was slapping a person. On asking what happened, her aunt said that the person had made inappropriate touch to her breast.

Upon that the informant said that the assailant of her aunt, while passing beside her (i.e. informant), had touched her breast and pressed it.

In view of the above, FIR was filed.

Analysis and Discussion


The Court noted that both PW-1 and PW-2 gave vivid details about the incident.

The Bench found the testimony of PW-1 and PW-2 to be creditworthy, cogent, consistent and reliable.

Further, it was stated that the innocence of PW-1 was reflected from her version that when the accused made unwelcome explicit touch to her breast, she ignored it, thinking that there was rush.

Court expressed that,

“What constitutes, an outrage to female modesty, is nowhere denied. The essence of woman’s modesty is her sex. It is the virtue, which is attached to a female, owning to her, sex.”

In the present matter, the culpable intention of the accused was the crux of the matter and the reaction of the woman was very relevant.

Additionally, the Court said that with regard to the nature of the allegation and the manner in which sexual offences are committed i.e. those are mostly committed secretly, it is also required to be pondered whether sole testimony of victim in such, nature of the allegation,

Decision


Upon evaluating and appraising the testimony of the prime witnesses PW­1 and PW­2 and the attendant factors and circumstances of the case, clinchingly, unequivocally it is elicited that the prosecution had been able to prove its case beyond reasonable doubt that the accused with sexual intent, made unwelcome touch to the victim girl aged 17 years, which was explicit sexual overtures.

“…incident as deposed by the two female victim PW­1 and PW­2 i.e. of unwelcome, inappropriate touch by the male accused, in journey, is a very common sexual assault experienced by every common woman traveling in public transport, but ignored by each one of them, thinking that there is no likelihood of coming across, the same assailant after the journey. Hence, almost all such assaults go unreported.”

As per Section 7 of the POCSO Act, whoever with sexual intent inter alia does any other act, which involves physical contact without penetration, is said to commit sexual assault.

Hence, the accused was guilty of committing an offence under Section 7 POCSO Act punishable under Section 8 of POCSO Act, Section 354 IPC and Section 91 of the Rights of Persons with Disability Act, 2016.

In view of the impact of child sexual abuse and on balancing the mitigating and aggravating circumstances, Court passed the following order:

  • Accused stands convicted as per Section 235(2) of CrPC for the offence under Section 7 punishable under Section 8 of the POCSO Act to undergo rigorous imprisonment for a term of 3 years and a fine of Rs 25,000 and in default to undergo a term of 6 months.
  • Accused stands convicted for offence under Section 354 and imprisonment for 3 years and fine of Rs 5,000.
  • Accused stands convicted for the offence under Section 91 of the Rights of Persons with Disability Act and to undergo imprisonment for a term of 1 year and fine of Rs 5,000 and in default to undergo a term of 15 days.
  • Accused to surrender his bail bonds and to be taken into custody.

[State of Maharashtra v. Mohsin Allauddin Chougule, Special Case No. 468 of 2017, decided on 22-2-2022]


Advocates before the Court

Ms. Jyoti Sawant, Spl PP for the State.

Mr. Pujari, Advocate for the Accused.

Case BriefsHigh Courts

Bombay High Court: Mangesh S. Patil, J., while upholding the decision of Special Judge elaborated on the Sections of POCSO Act in light of a minor being induced to be involved in the sex trade.

Instant appeal was filed under Section 374 of the Code of Criminal Procedure against the conviction of the appellants for offences punishable under Section 370 read with Section 34 of the Penal Code, 1860, under Section 5 and 6 of the Immoral Traffic Prevention Act (PITA) and under Section 4 read with Section 17 of Protection of Children from Sexual Offences Act (POCSO).

Appellants are mother and daughter.

PW 4 had received information that the appellants were running a brothel.

During the raid conducted, respondent 2 who was then 17 years of age was found in a room with constable Bahirwal. A specified denomination currency note of Rs 500/- was found in possession of the appellant 2. Five to six used condoms and 200 pieces of unused condoms in a packet were found.

Respondent 2 (victim) and appellants were taken to the Police Station for the offences punishable under Section 366A, 370 372 read with Section 34 of the Penal Code, 1860, Section 3, 4,5, 6 and 7 of the PITA and Section 12 and Section 4 read with Section 17 of the POCSO Act.

Further, appellants were acquitted of the offences punishable under Section 366A and 372 of the Penal Code, 1860, of Section 12 of the POCSO Act and Section 7 of the PITA.

Analysis, Law and Decision

Age of the Victim

 Bench observed that when there is ample evidence in the form of school record which duly stands corroborated by the medical age determination test, though the latter is only an approximation, the former being concrete is sufficient to determine and conclude, as has been rightly done by the Special Court that the victim was less than 16 years of age at the relevant time and was, therefore, a child under POCSO Act as also under the PITA.

It was also noted in view of the circumstances and evidence that the victim (PW 1) had apparently willingly succumbed to the sexual exploitation.

Further, at no point of time, the victim seemed to have made any attempt to escape.

Even according to the victim, she was lodged in the house of the appellants for a period of about a month and was subjected to sex twice a day. Not only this but even while narrating the history to the Medical Officer Dr Shahane (PW 6) she disclosed that she was willingly working as a sex worker for a month.

 On noting the fact that she was a child within the meaning of Section 2(d) of the POCSO Act and Section 2(aa) of the PITA, her consent became irrelevant, and it was not a consent in the eye of law.

In view of the provisions of Section 29 of the POCSO Act, a presumption regarding commission of the offences under the Act needed to be raised as has been rightly done by the Special Judge. Appellants miserably failed to displace the burden cast upon them.

Coming to the ingredients for the individual offences for which the appellants have been convicted, so far as Section 370 of the Penal Code is concerned, i.e. for trafficking of person, even if it is concluded that since Shantabai had not been arrayed as an accused and therefore there was no evidence in respect of actual sale by her and purchase by the appellants of the victim on overall appreciation of the evidence it is quite apparent that the victim was induced into trade for the obvious monetary gain which is nothing but a trafficking as defined in Clause Sixthly of Sub Section 1 of Section 370 of the IPC.

As per the provisions of Section 5 and 6 of PITA, the former punishes procurement or inducement or taking a person for the sake of prostitution whereas Section 6 is concerned obviously the victim (PW 1) was detained in the house of the appellants with intent that she may have sexual intercourse with the persons who were not her spouse which is sufficient to constitute the offence.

Turning to the offence punishable under Section 17 read with Section 4 of the POCSO Act, Section 17 provides for punishment for abetment of any offence under the POCSO Act. Whereas Section 4 provides for punishment for penetrative sexual assault. Section 3 defines penetrative sexual assault to mean the different acts provided for therein.

Since the victim was made to succumb to the penetrative sexual assault by various customers and the appellants had induced her into that trade, it could easily be concluded that they committed an offence punishable under Section 17 and were rightly convicted and sentenced by the Special Judge.

Therefore, no illegality was found in the impugned judgment and order convicting and sentencing the appellants.

In view of the above discussion, appeal was dismissed. [Sunita v. State of Maharashtra, 2021 SCC OnLine Bom 1631, decided on 9-08-2021]


Advocates before the Court:

Advocate for the Appellants: Mr Aniket Vagal.

APP for Respondent No. 1/State: Mr S. N. Morampalle.

Advocate for Respondent 2: Mrs Rashmi S. Kulkarni.

Case BriefsHigh Courts

Allahabad High Court: Ajit Singh, J., rejected the bail application observing that the incident involves the rape of a minor and family is threatened to convert their religion. 

The present petition was filed seeking enlargement on bail during the trial as the petitioner was charged under sections 452/376/120-B IPC, and Sections 3/4, 17/18 POCSO Act and Section 3/5(1) U.P. Prohibition of Unlawful Conversion of Religion Act 2020 and 66 E Information Technology (Amendment) Act.

The factual matrix involves that the present accused had entered into the house of the complainant and forcibly raped the minor daughter of the complainant when she was alone at her house. It was also alleged in the F.I.R. that present accused has made a video clip of the victim and was pressurizing her for establishing physical relation again and when complainant asked the father of the present accused to get the video clip deleted, then the father of the present accused said when your entire family will convert the religion then my son will marry to your daughter else I will marry her.

The Court observed and held that “considering the seriousness of the matter and minor daughter was raped and entire family was asked to convert their religion, without expressing any opinion on the merits of this case, this court does not deems it fit to release the applicant on bail.”[Abdul Rahman v. State of U.P., Criminal Misc. Bail Application No. – 21091 of 2021, decided on 05-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

Counsel for Applicant: – Mr Qaisar Kamal Ansari

Counsel for Opposite Party: – Mr Kamal Kumar and Mr Om Singh Rathaur

Case BriefsHigh Courts

Karnataka High Court: K Natarajan, J., rejected the prayer for bail and dismissed the petition.

The instant criminal petition was filed under Section 439 of the Criminal Procedure Code, praying to enlarge the petitioner on bail for the offences punishable under Sections 363, 343, 114, 506 and 376 read with Section 34 of the Penal Code, 1860 and Sections 4, 17 and 18 of the POCSO Act and Sections 9 and 10 of the Child Marriage Act.

Counsel for the petitioner Mr. M S Venugopal submitted that petitioner and the victim fell in love with each other. Both of them eloped and married in the presence of Mutavali and the marriage is a registered marriage. A copy of the marriage certificate is also produced.

Counsel for the respondent Mr. K. Nageshwarappa and Sharan N Majage submitted that the victim is 17 years and the victim married the accused on 01.10.2020 and her mother was not happy with the marriage and without her consent, she went along with the petitioner-accused. Therefore, prayed for allowing the bail petition.

The Court observed that the age of the victim is 15 years and her consent is immaterial. Though the second marriage is permissible under the Mohammedan Law, but the personal law cannot override the Special Law of POCSO, Child Marriage Restraints Act and General Penal Code of this Country. Merely the parties are Mohammedan that does not mean that the petitioner-accused 1 has right to marry a minor girl by enticing and abducting her. The consent or will of the victim minor girl is immaterial and even if she has voluntarily went with the accused, that amounts to abduction or kidnapping under Section 363 of IPC, got married to her which attracts Sections 9 and 10 of the Child Marriage Restraint Act and sexually assaulted her which attracts Sections 4 and 6 of POCSO Act.

The Court observed even if the minor girl gives ‘no objection’ to release the accused in a heinous crime like rape on a minor girl and granting bail to the accused is nothing but giving license to the offender to commit similar offences which would dilute the Special Act enacted by the Parliament for protecting the children from sexual offences and also deviating the provisions of Sections 9 and 10 of Child Marriage Restraint Act apart from the provisions of Section 375 of IPC and it will send a wrong message to the Society. Therefore, in the interest of the public at large and with an intention to curtail such type of sexual offences, the Court shall ignore the consent of a minor girl giving ‘no objection’ for granting bail to the accused and the Court should deal with such a heinous offence with an iron hand.

The Court held the petitioner-accused No.1 is not entitled for bail and the criminal petition deserves to be dismissed.” [Rahul v. State of Karnataka, 2021 SCC OnLine Kar 12728, decided on 16-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Allahabad High Court: Vikas Kunvar Srivastav, J., addresses whether a minor girl on attaining majority can ratify the agreement of marriage that she had entered into when she was a minor? The legality of such an agreement tested.

Instant petition was moved on behalf of ‘Sadhna Kumari’ aged about 18 years through her next friend. Next friend allegedly the husband aged about 19 years.

OPs 4 and 5 (Parents of Petitioner Sadhna Kumari) with whom petitioner’s unlawful detention was complained.

Next Friend pleaded that the detenue petitioner Sadhna Kumari and next friend Shekhar were legally wedded and living as husband and wife since after an agreement purported to be of marriage.

Analysis and Decision

Bench noted that the petitioner’s counsel failed to show material averment as to the ‘solemnization of marriage’. Its date, place and time so as to establish the wedding of the petitioner and her next friend the alleged husband.

‘Agreement’ dated 31-07-2020 was pleaded as the basis of legal authority of the next friend to seek habeas corpus of petitioner Sadhna Kumari.

Purpose of Writ

It is to facilitate the next friend to cohabit with petitioner without interruption of anyone else, even the parents of Sadhna Kumari (OPs 4 and 5) with whom she is presently residing.

Legality of Agreement dated 31-07-2020

As per the High School Examination certificate, Sadhna Kumari’s date of birth was 17-03-2003. In view of the stated material fact, the ‘agreement’ purported to be of marriage when allegedly executed by the petitioner Sadhna Kumari on 31-7-2020 she was a minor aged about 17 years and 4 months, therefore, at the relevant date of agreement despite the alleged agreement of her consent to cohabit with Shekhar Pandey, the next friend as husband and wife, she could not be supposed to give valid consent in law.

A criminal case has been registered against the next friend on the complaint of the petitioner’s mother.

Agreement of which either party to it is a minor- Legal Status 

Agreements which are made enforceable in law are provided under the Indian Contract Act, 1872. Section 11 of the Indian Contract Act states that:

“every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject.”

 It is pertinent to keep in mind the age of the majority which capacitates a person to contract.

Since petitioner’s date of birth was 17-03-2003, she was undoubtedly on the date of ‘agreement’ dated 31-07-2020 a minor.

As per the definitions given in Child Marriage Restraint Act, 1929 and Juvenile Justice (Care and Protection of Children) Act, 2015 such a person has termed a child.

Court stated that the petitioner was a minor as well as a child also when she allegedly entered into the agreement to marry on 31-7-2020. Further, she was party to an agreement of marriage.

An agreement must not be opposed to law. The law applicable to petitioner being a Hindu, is “The Hindu Marriage Act, 1955”.

Section 5 (iii) of the said Act provides the marriageable age, according to which the marriage may be solemnized between any two Hindus, if the following conditions are fulfilled: –

“(iii) the bride groom has completed the age of twenty one years and the bride, the age of eighteen years at the time of the marriage.”

High Court held that The Hindu Marriage Act, 1955 and The Indian Contract Act, 1872 the petitioner had no legal capacity and competence to enter into the agreement to marry with Shekhar. Court added that even Shekhar was not of marriageable age under the law.

India Law states that in marriage where either the woman is below the age of 18 years or the man is below the age of 21 years, such marriage, if solemnized by the guardians becomes voidable under Section 5 of the Hindu Marriage Act at the instance of minor. He has option to ratify the marriage also.

 In the present matter, marriage was being claimed as an agreement to cohabit as husband and wife by virtue of an agreement dated 31-07-2021. Hence, the question was – whether on attaining the majority age a minor was competent to ratify his/her agreement executed in the age of minority?

Legal Position to address the above question:

(i) contract with minor is void and no legal obligation can ever arise on him/her therein,

(ii) the minor party cannot ratify the contract upon attaining majority unless the law specifically allows this, and

(iii) no court can allow specific permission of a contract with minor because it is void altogether.

When a contract is entered on behalf of lawful authority of a minor then only the option is available attaining majority to minor either to ratify or to rescind the contract entered by the person having lawful authority on his behalf.

Therefore, in view of the above discussion, the agreement dated 31-7-2020 of which one of the parties namely petitioner Sadhna Kumari a minor, is void, as the same is in violation of Sections 11 and 23 of the Indian Contract Act, 1872.

Elaborating its conclusion, High Court added that agreement dated 31-7-2020 purporting to be of marriage and consent to cohabit together, cannot be given effect so as to issue notice to opposite parties for the production of the petitioner in court for the purpose of recording her desire to ratify her alleged agreement to marry/consent deed, for the reason of the same being a void agreement.

Bench while dismissing the petition stated that this decision shall not impede the petitioner to enter into marital relations with a person of her choice on attaining marriageable age through a lawfully solemnized marriage or otherwise. [Sadhna Kumari v. State of U.P., 2021 SCC OnLine All 276, decided on 15-04-2021]


Advocates before the Court:

Counsel for the Petitioner: Janardan Singh

Counsel for the Respondent: G.A.

Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J., while addressing a petition with regard to the rape of a minor girl, made an observation that:

“Rape” is just not a forcible intercourse, it means to inhabit and destroy everything.

A minor victim girl registered a complaint based on which offences for Sections 376, 354-D, 506 of Penal Code, 1860 were invoked against the applicant.

Since the complaint was registered by a minor, provisions of Sections 3, 4, 11 and 12 of the Protection of Children from the Sexual Offences Act, 2012 were also invoked.

Victim who was acquainted with the applicant who was a business partner of the victim’s father.

She alleged that from the month of October, 2019, the applicant started texting her on her Whatsapp and expressed his liking towards her and also sought sexual favours from her, which was turned down by the victim girl.

Applicant sent a message to the victim stating that he wanted to discuss an important family matter with her and asked her to meet the next day. Next day, when she was waiting for a bus to arrive the applicant approached her on a two-wheeler and she was asked to accompany him.

She was then taken to a nearby farmhouse and by making an emotional appeal and threatening that she if did not agree, he will commit suicide, she was forced to commit sexual intercourse with him. She was also threatened that she should not disclose the incident to her parents and if she does so, it would adversely affect the partnership business.

Again after the above incident, the applicant forced the victim in a similar manner and indulged with her physically.

After a few days of the second incident, the victim disclosed it to her parents and after due deliberation, the report was lodged.

Bench on perusal of the above stated that it is not very unlikely that a young girl aged 17 years became disquieted after the act of ravage and did not gather the courage to speak to her parents about the said incident.

The victim girl was also conscious of the fact that the applicant was a business partner of her father.

The whole episode of the applicant indulging with a minor girl, a daughter of his business partner itself speak of his intention.

FIDUCIARY RELATIONSHIP

Court further observed that the applicant took advantage of the fiduciary relationship, which he shared with the victim girl and put her in a vulnerable situation.

CONSENT

Assuming but not accepting that the victim girl consented for maintaining the physical relationship, her consent is not free consent.

Further, adding to the above, penal code does not recognise the consent by a minor girl to be consent in the eyes of law and in the present case, in the backdrop of narration by the victim, her consent can naturally be said to be induced by a fiduciary relationship which she shared and on that count also, it is not free consent.

“Offence of rape as defined in Section 375 of the IPC, made punishable under Section 376, is attracted when a man commits an act of rape without the consent of the girl or when such consent is obtained by putting her in fear of death or of hurt. The hurt may be physical or mental.”

The consent of the victim girl under 18 years of age is also of no legal consequences when it comes to an offence of rape punishable under Section 376 IPC.

In view of the above observations, High Court did not release the applicant on bail and rejected the bail application. [Amit Raosao Patil v. State of Maharashtra, 2020 SCC OnLine Bom 917, decided on 09-09-2020]

Case BriefsHigh Courts

Delhi High Court: Yogesh Khanna, J., held that no coercive action shall be taken against the co-founder of ALT News with regard to the FIR alleging him to have harassed a minor girl on twitter.

Journalist

Petitioner who is a journalist and co-founder of news website outlet ALT News and due to the nature of his work is often abused, threatened and demeaned by people.

Two separate FIRs have been registered against the petitioner. In one FIR it has been submitted that the petitioner had shared an old image of his wearing traditional Indian attire and one Jagdish Singh from his twitter handle replied to this image “once a jihadi is always a jihadi”.

In July again the petitioner tweeted a simple tweet, wherein again Jagdish Singh from his twitter handle replied to the petitioner with a vulgarly worded image Tu toh bada mad****** nikla re”.

Again a similar instance occurred to which, this time the petitioner re-tweeted on Jagdish Singh’s tweet displaying a picture which was visible to the public wherein Jagdish Singh was standing with his daughter whose face was pixelated/blurred by the petitioner and he wrote “Hello Jagdish Singh, Does your cute granddaughter know about your part-time job of abusing people on social media? I suggest you change your profile pic”.

Further, the petitioner argued that the tweet would not reveal if it was intending to cause harassment to the minor girl and rather the said tweet was made on respondent 3 personal account.

06-08-2020: Respondent 3 made a complaint to respondent 2 against the petitioner. Only through twitter, the petitioner got to know that respondent 2 has taken cognizance of the complaint filed.

Petitioners’ Grievance

Petitioner submitted that the copy of the FIR was never supplied to him and for this reason, he could not respond to the allegations made against him.

Bench directed respondent 1 and 4 to supply a copy of the present FIR to the petitioner and should also file a status report on or before the next date.

Response from the police and the National Commission for Protection of Child Rights (NCPCR) has also been sought.

Though respondent 2 submitted she was performing her duty as an informant, however, petitioner states that the information annexed at page 40of the paper book comes from the twitter handle of respondent 2 and the said information was made public, probably to harass the petitioner.

Respondent 2 shall also file a reply on or before the next date.

Matter has been listed for 08-12-2020, till then no coercive action to be taken. [Mohammed Zubair v. State of GNCT, 2020 SCC OnLine Del 1189, decided on 09-09-2020]

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: A Division Bench of Akil Kureshi, CJ and S. Talapatra, J., initiated suo motu petition with regard to report wherein it was stated that a minor girl from Tripura was probably being pushed into flesh trade outside the State and was traced in Rajasthan.

Girl was found to be pregnant. Eventually it was noted that with the co-operation from various agencies including the National commission for Child Protection, State Commission, State Authorities as well as the State of Rajasthan and the Rajasthan State Authorities, the girl is back in Tripura.

Mother of the minor girl is reluctant to receive the girl.

State Legal Services Authority in conjunction with the State Commission for Child Protection shall continue the efforts to reunite the girl with her family.

Bench stated that the said Legal Services Authority shall also explore if there are any schemes for payment of periodic or lump sum compensation to the victims in such cases. If there is a possibility of payment of ex gratia compensation from the funds of the State Legal Authority, the same may also be explored.

It has been informed to the Court that 4 other minor girls have also been found in Uttar Pradesh and efforts are being made to bring them back and reunite them with their families.

In view of the above, PIL was closed as the same has served its purpose. [Court on its own motion v. State of Tripura, 2020 SCC OnLine Tri 301 , decided on 17-07-2020]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: P.B. Suresh Kumar, J.,  overturned the conviction of a rape accused by giving him benefit of doubt.

Case of the Prosecution

In the year 2012, accused committed rape on minor girl aged 15 years and thereby committed the offence punishable under Section 376 of Penal Code, 1860 and Section 5(1) read with Section 6 of Protection of Children from Sexual Offences Act, 2012.

On an examination of the materials on record, the Court below found that the prosecution has not made out a case against the accused under Section 5(l) read with Section 6 of the POCSO Act.

The Court however found that the accused is guilty of the offence punishable under Section 376(2)(f) of the IPC and sentenced the accused.

Accused filed the present petition as he was aggrieved by the sentence and conviction.

Decision

Whether prosecution has established the guilt of the accused under Section 376(2)(f) of IPC?

overt acts attributed against the accused being overt acts allegedly took place prior to Act 13 of 2013, the point to be considered is as to whether the prosecution has established the guilt of the accused under Section 376(2)(f) of the IPC as it stood prior to Act 13 of 2013.

Prosecution failed to establish the age of the victim girl.

Further the Court observed that the medical examination of the victim girl was done after about 5 years.

The mother of the victim girl who was examined as PW3 turned hostile. In a case of this nature, the fact that the mother of the victim girl herself has not given evidence against the accused in support of the prosecution case throws serious doubts as regards the genuineness of the case.

Bench also noted that the version of the victim girl as regards the overt acts attributed against the accused while she was taken to the doctor for medical examination was that the said incidents took place while she was studying in the 6th standard, whereas, as revealed from the extracted portion of the evidence, what was stated by her before the Court was that the said overt acts have been committed by the accused while she was studying in the 5th standard.

Hence, in view of the inconsistent versions with regard to the overt acts alleged against the accused along with absence of any specific evidence, Court did not found it safe to convict the accused.

“…it was found that the prosecution has not proved the age of the victim girl, even if it is admitted that the accused had sexual intercourse with the victim girl, there is absolutely nothing on record to infer that the alleged sexual acts attributed have been committed against the will of the victim girl or without her consent.”

Court also noted that, the overt acts alleged against the accused took place during 2010, whereas the charge in the case is that the accused committed rape on the victim girl during 2012.

Therefore, accused is entitled to the benefit of doubt and criminal appeal is allowed. [Shaik Shiyavulla v. State of Kerala, 2020 SCC OnLine Ker 2631 , decided on 09-07-2020]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: While deciding the instant petition filed by a runaway couple seeking protection from arrest and bodily harm that they apprehend, can be caused by the police and the private respondents respectively, the Bench of Rajiv Narain Raina, J., held that in matters such as one raised in the instant petition, the Courts should abstain itself from evaluation of social norms and introduction of personal ideas related to social morality.

The matter was taken up via video conferencing due to ongoing Covid-19 pandemic. It was contended by the counsel for the respondents that the petitioner is minor. The Court also noted that the petitioners have already submitted their Aadhar Card as proof of their majority, thereby rebutting the respondent’s claim.

Disposing off the petition, the Court referred to Lata Singh v. State of U.P., (2006) 5 SCC 475 and observed that since the petitioner’s prayer for protection is based on Article 21 of the Constitution, therefore it is necessary that the police attends to the matter in all earnestness and ensures that adequate protection is provided to the petitioners from any kind of bodily injury and harm. The Court further noted that, even if it assumes that the petitioner girl is minor, under the Hindu Marriage Act, 1955 marriage of a minor girl is not void, but voidable upon reaching the marriageable age. [Sumanpreet Kaur v. State of Punjab, 2020 SCC OnLine P&H 694, decided on 12-05-2020]

Case BriefsHigh Courts

Bombay High Court: S.C. Gupte, J., allowed medical termination of 24 weeks pregnancy of 16 year old girl victim of rape & sexual abuse.

Petitioner had sought for medical termination of 23 weeks pregnancy of his daughter who is 16 years old and is a victim of rape and sexual abuse.

In respect of the offence of rape and sexual abuse, an FIR has been registered by the Petitioner with Paud Police Station, Pune.

Petitioner’s case proceeds on the footing that his daughter, being of a tender age of 16 years, is likely to suffer mental and physical trauma due to unwanted and dangerous pregnancy.

So also, it is submitted that continuation of pregnancy at this tender age of 16 years is likely to leave a maternal mortality and in the premises, permission of this court is sought for medical termination of pregnancy.

Court referred the case on 5th May, 2020 to a medical committee. Medical Board recommended termination of pregnancy in view of her history and teenage pregnancy carrying higher mental and physical morbidity and mortality.

Thus, Bench held that considering that despite being aware of the dangers of continuation of pregnancy as well as its termination, Petitioner and his daughter having expressed a keen desire before the Board to terminate the pregnancy and considering the specific opinion of the Medical Board, it is imperative to permit the medical termination of pregnancy.

Court also stated that in view of the same being a result of rape and sexual abuse, appropriate directions for preservation of tissue and blood sample of the fetus for carrying out requisite medical tests including DNA finger printing /mapping would have to be passed.

Bench further observed that, in case the child born is alive and the Petitioner and his daughter are not willing to or not in a position to take responsibility of such child, the State and its agencies will have to assume full responsibility for such child.[Pramod A. Solanke v. Dean of B.J. Govt. Medical College & Sasoon Hospital,  2020 SCC OnLine Bom 639 , decided on 08-05-2020]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Raja Vijajayaraghavan, J. rejected an application for pre-arrest bail on the ground that victim was a minor girl.

An application was filed under Section 438 CrPC for the offence punishable under Section 363 read with Section 34 of the Penal Code, Sections 7 and 8 of the Protection of Children from Sexual Offences Act, 2012, and under Section 77 of the Juvenile Justice (Care and Protection) of Children Act, 2015.

The facts of the case were that the victim, the minor girl was called by the applicant to meet him as he had infatuation towards her and wanted to hug her. The victim reached the decided place in a car which belonged to the accused as stated by him. Thereafter they sat and had a conversation for some time. The applicant was alleged to offer a joint and they both smoked. Later, he was alleged to have sexually abused her.

Biju Antony, K.P. Prasanth, Shafin Ahammed, Hijas T.T., Archana Suresh, T.S. Krishendu, Vishnu Dileep counsels for the applicant submitted that numerous crimes were registered at the instance of the minor girl and this was also one such case. It was also submitted that investigation was almost complete and the custodial interrogation of the applicant was unwarranted.

Ramesh Chand, Public Prosecutor, strenuously opposed the prayer and submitted that the main allegation was that of sexual assault against the minor girl and thus the court will not be justified in arming the applicant with the order of pre-arrest bail.

The Court after perusing the material made available held that this was a prima facie case where a victim is a minor girl and thus held that “having regard to the nature and gravity of the allegations, the role assigned to the applicant, the age of the victim, the materials in support thereof and attendant facts, it does not appear to be a case in which this Court will be justified in granting the applicant an order of pre-arrest bail.”[Visobh K.V. v. State of Kerala, 2019 SCC OnLine Ker 1633, decided on 27-05-2019]

Case BriefsHigh Courts

Sikkim High Court: A Bench of Vijay Kumar Bist, C.J., and Meenakshi Madan Rai, J., dismissed an application filed against the judgment of the Special Judge (POCSO) whereby the appellant was convicted for the offences punishable under various sections of the Protection of Children from Sexual Offences Act, 2012 and the Penal Code for raping a minor girl.

It was alleged that the appellant raped the victim in a jungle near her school when she went there for collecting fruits. The victim was aged 13 years at the time of the incident. The appellant was tried, convicted and sentenced for raping the victim by the trial court. Aggrieved thereby, he preferred the present appeal.

Gulshan Lama, Advocate (Legal Aid Counsel) for the appellant relied on the statement of doctors to challenge the impugned judgment. Per contra, Thimlay Dorjee Bhutia, Additional Public Prosecutor supported the impugned judgment.

The High Court noted that the Forensic Laboratory Report stated that human semen was found on victim’s underwear. Considering the report with statements of the victim and her friend, the Court found the victim’s statement trustworthy.

Explaining the law, the Court observed, “Section 29 of the POCSO Act provides that where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3,5,7 and 9 of the POCSO Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved. In this case, the appellant failed to prove that he has not committed the offence as alleged by the minor victim. Section 30 of the POCSO Act provides that the accused has to establish beyond reasonable doubt that had no culpable mental state.”

Stating that the appellant made no effort to rebut the presumption of culpable mental state, the Court dismissed the appeal. [Lakpa Dorjee Tamang v. State of Sikkim, 2019 SCC OnLine Sikk 7, dated 21-2-2019]