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]