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]

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]

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]

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]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Rakesh Kumar Jain, J., refused to grant permission to terminate pregnancy of a 14 year minor girl.

The facts of the case are that the petitioner is a father of a minor girl of 14 years of age who was raped and on that account an FIR was filed against the accused under Section 6 of the POCSO Act, 2012 and Sections 376(3) and 506 of Indian Penal Code. As soon as the pregnancy of the minor came into light, the petitioner approached the Court for termination of 28 weeks pregnancy in accordance with the Medical Termination of Pregnancy Act, 1971 wherein permission of Court is required if the pregnancy is of more than 20 weeks.

Question before Court was whether if pregnancy of the minor is terminated, there would be danger to life of minor or not. Respondent Director, PGIMS Rohtak gave opinion according to which if pregnancy is terminated there could be grave risk to minor’s life. Petitioner even after apprehension of minor’s death pleaded the termination of pregnancy to be carried out. Court after hearing the parties refused to permit termination of pregnancy.

Petitioner asked for directions in light of the case of Shewata v. State of Haryana, 2015 SCC OnLine P&H 20442 wherein termination of pregnancy of a girl was rejected but directions were given by Court for the welfare of the girl. Court, therefore, issued directions to the Director, PGIMS Rohtak for the welfare of the minor. Some of the important directions are given here for reference. Direction to admit minor as an indoor patient with a private room was given. Minor was to be given medicines, food, clothes, and other facility and during delivery, minor should be personally monitored by the Head of the Department of Obstetrics and Gynaecology. Authorities of Medical College were supposed to ensure privacy and non-disclosure of her name to the public. With the above directions, this petition was disposed of. [Sikander v. State of Haryana, CWP No.21291 of 2018, decided on 28-08-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: While dismissing the appeals filed in regard to the commitment of heinous crime of gang rape and murder, the Division Bench of S.K Seth and Nandita Dubey JJ., pronounced death sentence to the convicts.

Once again the social fabric of the society was severely affected when the heinous offence of rape of an 11-year-old child and subsequently killing her took place in the most gruesome manner as it could have been possible.

According to the findings and observation of the trial court, it had after meticulous consideration of the records that were collected and the chain of events that occurred established that the accused committed the heinous crime of gang rape and murder of the deceased. Therefore, the trial court had found the accused guilty for offence punishable under Sections 376 A and 302-A IPC.

However, the High Court, while stating that when a case rests on circumstantial evidence, the Court has to be satisfied that the circumstances from which an inference of the guilt is sought to be drawn, must be cogently and firmly established and trial court had in the present case successfully established the chain of events and convicted the accused Bhagwani and Satish. Though unfortunately, the trial court failed to charge the accused for the offence under Section 377 IPC as clear evidence of carnal intercourse was attained in the post-mortem report. Therefore, the appeal was dismissed by confirming the death sentence awarded by the trial court to each of the accused. [In Reference (Received from District & Sessions Judge, Dindori (MP) v. Bhagwani,  2018 SCC OnLine MP 338,  dated 09-05-2018]

Hot Off The PressNews

Self-styled Godman Asaram has been found guilty of the rape of a 16 year old girl in 2013 by the Special Trial Court in Jodhpur. He has been sentenced to Life Imprisonment. Of the five accused, three – including Asaram – have been convicted, while the other two have been acquitted. The 2 other associates of Asaram, namely, Shilpi and Sharad Chand, have, both, been awarded 20 years imprisonment.

Judge Madhusudan Sharma pronounced the verdict from Jodhpur Central Jail, where Asaram is currently  lodged,  as per the orders of the Rajasthan High Court. Section 144 has been imposed in Jodhpur city. This move was due to the fear of adverse reactions from Asaram’s followers, and a repeat of the violence that followed the verdict in another Self-Styled Godman Gurmeet Ram Rahim case last August.

[Source: Indian Express]

Case BriefsHigh Courts

Karnataka High Court: While deciding a criminal petition filed under Section 439 of CrPC, a Single Judge Bench of Budihal R.B., J. held that the consent of a girl aged 14 years, for sexual intercourse, is immaterial and the POCSO Act classifies it as a rape.

The petitioner-accused was charged for offences punishable under Sections 363, 366 (A), 376(2) of IPC and also under Section 6 of POCSO Act. Learned counsel for the petitioner submitted that the statement of the victim girl recorded under Section 164 of CrPC itself says that she was in love with the petitioner, her family members were not supporting her so she herself left the house and went with the petitioner, and she had sexual intercourse with the petitioner out of her own free will and volition. In view of her statement, the counsel submitted that, there was no prima facie material against the petitioner and hence he may be enlarged on bail.

The Court perused the submissions made on behalf of the parties and the statement of the victim recorded under Section 164 CrPC, and found that the victim girl was 14 years old. She went along and stayed with the petitioner for one week and had sexual intercourse with him. The High Court was of the opinion that even if the girl aged 14 years consented to sexual intercourse, the consent was immaterial. It was a rape. There was a prima facie case against the petitioner. Accordingly, the Court declined to exercise discretion in favor of the petitioner and the petition was rejected. [Premkumar H.M @ Swamy v. State of Karnataka, 2017 SCC OnLine Kar 2447, dated October 9, 2017]