Case BriefsSupreme Court

Supreme Court: In a case where a 3 year old girl was raped and strangulated to death, the 3-judge Bench of L. Nageswara Rao, B.R. Gavai* and B.V. Nagarathna, JJ., commuted sentence of capital punishment to life imprisonment.

The Fast Track Court, Raigarh had convicted the appellant for the offences punishable under Sections 363, 366, 376(2)(i), 377, 201, 302 read with Section 376A of the Penal Code, 1860 and Section 6 of the POCSO Act, 2012 and vide the same judgment and order, the appellant was sentenced to death for the offence punishable under Section 302 of the IPC. Subsequently, vide the impugned judgment and order, the High Court had confirmed the death penalty.

3 year Old Raped, Strangulated to Death

The victim, aged 3 years went missing on the unfortunate day and when she couldn’t be traced till evening a missing case was lodged. Later that day, the appellant himself came forward to claim that if he be permitted to conduct worship he could tell the whereabouts of the victim child. Accordingly, after worship the appellant stated that the child was inside a sack in the bushes near a pole beside the Amlibhauna road. On suspicion, the police was informed and during search the dead body of the victim soaked in blood and in a naked condition was found from the stated place.

On being interrogated, the appellant revealed that the previous day, he saw the victim girl who lived on the floor above his house coming downstairs, whom he persuaded and took her into his room, where he forcibly made physical relation with her and when the deceased started crying loudly, he pressed her mouth and nose with a pillow and murdered her by strangulating. He then wiped the blood and the ejaculated sperm smeared on his penis with a towel kept in the room, filled the dead body in a plastic sack of lentil by twisting her hands and legs and hid it in the stated place.

Whether guilt of the Appellant was proved beyond reasonable doubt

As the conviction was based on circumstantial evidence, the appellant submitted that the prosecution had utterly failed to establish the incriminating circumstances and in any case, failed to establish the chain of events, which lead to no other conclusion than the guilt of the accused.

Noticing the oral report of the victim being missing and the FIR that came to be registered, the Bench stated that the first circumstance that the victim went missing at around 10.00 am, and thereafter, they started searching for her has been proved beyond doubt. Further, corroborating statements of the parents of the victim and one of their neighbours that the appellant had claimed that the child could be traced by worship and subsequent recovery of materials used for performing the worship along with the recovery of victim from the place claimed by the appellant also proved the case against the appellant beyond reasonable doubts. Another circumstance against the appellant was the recovery of the black jeans half pant of the deceased from the dumping area as told by the appellant and the gamchha (towel) and pillow from the house of the appellant.

Applicability of the Section 27 of Evidence Act

On the contention that the memorandum of the appellant with regard to recovery of dead body was not admissible under Section 27 of the Evidence Act as the same was from an open place, accessible to one and all, the Bench stated that in State of Himachal Pradesh v. Jeet Singh, (1999) 4 SCC 370, it had been held that what is relevant is not whether the place was accessible to others or not, but whether it was ordinarily visible to others. If the place at which the article hidden is such where only the person hiding it knows until he discloses that fact to any other person, then it will be immaterial whether the concealed place is accessible to others.

Further, the High Court, after going through the photographs and video clips of the search had noted, “the recovery of dead body was made from a place which could not be said to be accessible to an ordinary person without prior knowledge as the body recovered was kept concealed in a gunny bag inside the shrubs situated at sufficient distance from the main road. In the statement under Section 313 CrPC, the accused/appellant failed to explain how he came to know that the deceased had been murdered and thrown in the shrubs after wrapping her in a gunny bag……..”

Hence, the Bench held that in any case, the recovery of the body on the information given by the appellant was duly proved by the memorandum of the appellant under Section 27 of the Evidence Act and the recovery panchnama. That apart, the oral testimony of PWs 1, 2, 3, 5 and 19 corroborated the same.

Speedy Trial and Accused’s Right to be properly heard

The appellant submitted that since the Raigarh District Bar Association had taken a resolution that no lawyer from the Bar would appear for him, it was difficult for him to engage a lawyer and the lawyer appointed by the Court also was not given sufficient opportunity to defend the case as the lawyer was appointed on 06-06-2016, immediately on the next day, the evidence of PWs 3 to 7 were recorded and the judgment and order of conviction along with sentence of death penalty was passed on 17-06-2016.

Opining that though a speedy trial is desirable, however, sufficient time ought to have been given to the counsel for the accused to prepare for the case after he was appointed, the Bench stated that even insofar as the award of sentence is concerned, some period ought to have been given between the date of conviction and the award of sentence, specifically when a death penalty was awarded. However, after scrutinizing the evidence in depth, the Bench denied the allegations that any prejudice was caused to the accused inasmuch as the witnesses had been cross-examined in detail by the lawyer appointed by the court.

Capital Punishment and Possibility of Accused being reformed

While elaborating whether a case falls within the category of the rarest of rare, the Supreme Court, in Mannan v. State of Bihar, (2019) 16 SCC 584, had held that the brutality, and/or the gruesome and/or heinous nature of the crime is not the sole criterion. It is not just the crime which the Court is to take into consideration, but also the criminal, the state of his mind, his socioeconomic background, etc. as awarding death sentence is an exception, and life imprisonment is the rule.

Noticing that the Trial Court had convicted the appellant and imposed death penalty on the very same day, the Bench opined that the Trial Court as well as the High Court had only taken into consideration the crime but they had not taken into consideration the criminal, his state of mind, his socioeconomic background, etc. Therefore, considering that the appellant was a young person, who was 23 years old at the time of commission of the offence, came from a rural background and his conduct in the prison had been found to be satisfactory and the fact that he had no criminal antecedents, the Bench held that it could not be said that there was no possibility of the appellant being reformed and rehabilitated foreclosing the alternative option of a lesser sentence and making imposition of death sentence imperative.

Conclusion

In the light of the above, the appeal was partly allowed. The judgment and order of conviction for the offences punishable under Sections 363, 366, 376(2)(i), 377, 201, 302 read with Section 376A of the IPC and Section 6 of the POCSO Act was upheld. However, the death penalty imposed on the appellant under Section 302 IPC was commuted to life imprisonment. [Lochan Shrivas v. State Of Chhattisgarh, 2021 SCC OnLine SC 1249, decided on 14-12-2021]

*Judgment by: Justice B.R. Gavai


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Appellants: Anand Grover, Senior Counsel appearing

For the State of Chhattisgarh: Nishanth Patil, Advocate

Case BriefsHigh Courts

Patna High Court: While addressing the plight of a minor girl who was first trafficked by her own maternal uncle and was later on thrown into prostitution for monetary gains, Rajeev Ranjan Prasad, J., emphasised on need for sensitization of Judicial Officers with regard to statutory provisions of POCSO Act, JJ Act and Immoral Traffic (Prevention) Act.

Background

A raid was conducted by Begusarai Police in the house of the accused (maternal uncle of the victim) from where a girl child aged about 15 years was rescued, the victim girl was found inside the room with an unknown person, two empty bottles of wine, medicine of Aids, pregnancy test kits, eleven used condoms and 100 unused condoms were found from there and the victim girl herself admitted before police that she was being subjected to prostitution forcibly and her maternal uncle and aunt were taking away the money. The victim disclosed that she did not remember name of her parents and on refusal to get involved in prostitution she was being beaten by the accused persons.

At this stage, the respondent 2 did not claim that she happened to be the mother of the victim. Though, at the time of making her statement under Section 164 CrPC, which was recorded ten days after she was produced before the Magistrate after her recovery from the brothel, the victim claimed that her mother was living with her for last one month.

Non-compliance of Statutory Safeguards

The prosecution case was that the Special Judge (POCSO) had erroneously directed release of the minor victim of alleged sexual offences in favour of respondent 2 who claimed herself to be the mother of the victim. The prosecution alleged that the impugned order was passed in non-compliances with the mandatory provisions of the Immoral Traffic (Prevention) Act, 1956, the provisions of Juvenile Justice Act, 2015 and the provisions of Protection of Children from Sexual Offences Act, 2012.

Analysis by the Court

After about four days when the statement of the victim was recorded under S. 164 of CrPC, the respondent 2 filed an application before the Special Judge to allow her to meet the victim girl in the Balika Grih which was allowed subject to proper identification. Later on, the Superintendent, Balika Grih, informed the Special Judge that respondent 2 could not be identified in CCTV Camera by the victim girl. Opining that the letter of the Superintendent should have been an eye opener for the Special Judge, the Bench stated that by that time the victim girl had not been approached, she could not be tutored and therefore she had not recognized respondent 2. However, the Special Judge allowed the respondent 2 to meet the victim.

“After six days, if the victim girl had disclosed the name of her mother as (respondent 2), there was a possibility that during these six days the accused persons would have been able to influence her to make statements favourable to the accused.”

Later on, the application for custody was taken up for consideration and on the same day the victim girl was handed over to (respondent 2) by just taking note of the fact that the victim had desired in her statement under Section 164 CrPC that she wanted to go with her mother.

Considering the prosecution case that no inquiry was made by the Special Judge to find out the genuineness of the claim of respondent 2 that she happened to be the mother of the victim and the order was passed in complete violation of the mandatory provision to make inquiry in respect of her age, parentage etc. in terms of sub-section (2) of Section 17 of the Act of 1956, the Bench opined that the Special Judge had acted in hot haste in passing the order of release of the victim minor girl in favour of respondent 2.

Opining that the identity of respondent 2 as mother of the victim girl was still shrouded by mystery, the Bench was of the view that the Special Judge had completely erred in abiding by the mandatory provisions and by not appreciating that the child who was being placed in the hand of respondent 2 was victim of alleged immoral trafficking as she had categorically stated before Police that she was being subjected to prostitution forcibly. While it was the duty of the Court to treat the victim girl as a child in need of care and protection and she should have been ordered to be produced before the Child Welfare Committee.

Conclusion and Directions

In the backdrop of above, the Bench held that the impugned order suffered from illegalities and infirmities rendering the order illegal and bad in law as also against the interest of the victim child. Accordingly, setting aside the order, the Bench remarked,

“The fact that victim child had been recovered again from the house of the accused persons and the report of social worker saying that at this stage of her life she being subjected to perform dance and stage shows to earn her livelihood and also the livelihood of her mother further shows that she is in need of care and protection.”

Further, noticing that presently the victim girl was with the Balika Grih and the medical Board had assessed her age between 16- 17 years, the Bench directed that until she attains majority, she would continue to stay in the Balika Grih itself and being major her release should be considered in terms of Section 46 of the J.J. Act with financial support in order to facilitate her reintegration into the mainstream of the society. Additionally, the Court directed the following:

  1. The Trial Court shall ensure that the accused persons and their pairvikar do not get access to the victim girl.
  2. Proper inquiry in accordance with law as to the genuineness of the claim of respondent 2 should be held as early as possible.
  3. With the view to sensitize all the stake holders the Bench directed the State through its Chief Secretary, the Home Secretary and the Director General of Police, as also the judicial officers across the State, Bihar State Legal Services Authority and the District Legal Services Authority to ensure that they look into the mandatory provisions of the aforesaid statutes whose aim and objects are to protect the child from all kinds of exploitations.
  4. The areas of these provisions which are required to be addressed be clearly identified, minuted and a monitoring cell be constituted to duly address and comply with the mandate of these legislations.
  5. Bihar State Legal Services Authority was directed to examine as to what extent the directions issued Apne Aap Women Worldwide Trust India v. State of Bihar, 2014 SCC OnLine Pat 5013, have not been complied with and bring it to the notice of the Chief Justice of the Court to consider registering an appropriate proceeding to monitor the implementation of those directions.
  6. Lastly, the Bench directed to circulate the copy of instant judgment to all the District Judges in Bihar with request to organize a workshop in their respective Judgeship with all the judicial officers and Members of the J.J. Board and the Child Welfare Committee to discuss the laws on the subject and ensure compliances therewith.

[Hanif Ur Rahman v. State of Bihar, 2021 SCC OnLine Pat 2775, decided on 4-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Kriti Awasthi, Advocate, Sambhav Gupta, Advocate, Navnit Kumar, Advocate and Shyam Kumar, Advocate

For the Respondents: Mr.Nadim Seraj, G.P.5

For the Respondent 2: Archana Sinha, Advocate

For the Respondent 4: Prabhu Narain Sharma, Advocate

Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J., upheld the Special Court’s decision for conviction of a person accused of having committed unnatural intercourse with a 9 year old child.

Appellant had been accused for the offence punishable under Section 4 of the Protection of Child from Sexual Offences Act.

Accused had committed unnatural intercourse with the minor victim who was 9 years old.

After the above stated incident the victim and his father went to the police station and lodged a report.

Special Judge framed charged for the offence punishable under Section 377 of Penal Code, 1860 and Section 4 of POCSO Act. After the trial, Special Judge held the accused guilty for offence punishable under Section 4 of POCSO Act.

Accused aggrieved with the above, filed the present appeal.

Bench while observing the matter, noted that the medical officer stated that there was no sign of recent tears, no abrasion, contusion or any injury to the private part, though the ultimate conclusion that he stated was “findings are consistent with entry of penis into anus”.

Special Judge did not consider the fact that victim’s father and the accused had some enmity, and on the said basis it could have been drawn that there was possibility of false implication of the accused. The child could have been tutored. 

Withe regard to the enmity aspect between the parties, Court’s opinion was that, even if for the sake of arguments it is accepted that there is such civil dispute; yet, the gravity does not appear to be so that with the help of a small child, the father would level such kind of allegations against the accused.

Further medical officer’s statement was also noted wherein following was stated, not found any recent tears, stains due to semen, blood, faecal matters around the anus or there was no injury or no mark of violence, yet, he has stated that when he had digitally examined the anus, he had found the tone of the sphincter to be hypotonic.

Thus, when the medical evidence supported the victim and there was nothing in the cross examination of the victim to discard his evidence or brand it as unbelievable or untrustworthy, then the facts stated were sufficient to come to the conclusion that the accused committed the offence.

Therefore, Special Court was justified in holding that the prosecution had proved the guilt of the accused beyond reasonable doubt and proceeded to convict him.

Present appeal was dismissed in the above-view. [Mahesh Sambhaji Chafle v. State of Maharashtra, 2020 SCC OnLine Bom 705 , decided on 12-06-2020]

Case BriefsHigh Courts

Sikkim High Court: A Division Bench of Meenakshi Madan Rai and Bhaskar Raj Pradhan, JJ. partly allowed the present appeal wherein a teacher sexually assaulted his minor students.

Appellant was tried, convicted and sentenced to imprisonment for offences of rape, aggravated penetrative sexual assault and for assault on the minor victim a schoolgirl with intent to outrage her modesty.

Judgment of conviction and sentence order have been challenged in the present appeal.

During the investigation, minor victim was examined and it was found that her breast nipples were swollen and her hymen was not intact and it admitted one finger coupled with tenderness and foul smell. Thus, Dr Rozeela Bhutia opined in her medical report that there was clinical evidence of sexual assault.

Minor victim identified the appellant as Kendrap Sir who used to teach them Mathematics and Hindi when she was in the 4th and 5th standards. She deposed that on two occasions, the appellant put his finger in her pisab garne (vagina). She deposed that on five occasions he put his hands on her chest/breasts in the classroom of the school. She also deposed about the appellant sexually abusing other schoolgirls.

Bench observed that,

It may be possible to get confused at such a tender age about which act was committed on which schoolgirl but near impossible for a schoolgirl to forget how she was sexually abused that too by her own teacher.

Section 375(b) IPC provides that insertion of a finger (a part of the body) into the vagina amounts to rape.

Court stated that it is inclined to uphold appellant’s conviction under Section 376(2)(f)(i) and (n) of the Penal Code, 1860.

Thus in view of the above terms, sentences under Sections 9(f), 9(l) and 9(m) of the POCSO Act are upheld.

In terms of Section 42 of the POCSO Act, the appellant is not liable to be punished for the offences under Sections 5(f), 5(l) and 5(m) of the POCSO Act. Accordingly, the appellant’s sentences under Section 5 of the POCSO Act are set aside.

Keeping in mind all the relevant considerations including the age of the appellant, Court held that sentence of 10 years and fine of Rs 50,000 for the above offences would be sufficient for the ends of justice. Appellant has been sentenced to 7 years of simple imprisonment and a fine of Rs 40,000 each for the offences under Sections 9(f), 9(l) and 9(m) of the POCSO Act.

Thus the appeal is partly allowed. [Kendrap Lepcha v. State of Sikkim, 2020 SCC OnLine Sikk 40 , decided on 01-06-2020]

Case BriefsHigh Courts

Bombay High Court: A Single judge Bench comprising of K.L. Wadane, J. partly allowed a criminal appeal filed against the judgment of the trial court whereby the appellant was convicted under Sections 450 and 354-A IPC along with Section 8 of the Protection of Children from Sexual Offences Act, 2000.

The appellant was accused of committing sexual assault on a minor victim on the pretext of giving her chocolate. the accusation and charges against the appellant stood proved in the trial court. Consequently, he was convicted as aforesaid and sentenced accordingly. Aggrieved thereby, the appellant preferred the instant appeal.

The High Court, after perusal of the record, partly affirmed the judgment of the trial court to the extent it convicted the appellant under Section 354-A IPC and Section 8 POCSO Act. However, regarding Section 450 IPC, it was observed that an accused can be convicted for the offence punishable under the said Section only if another offence for which he has been convicted is punishable with imprisonment for life; otherwise, the conviction under Section 450 IPC is bad in the eyes of law. Since in the instant case, the other offences for which the appellant was convicted were not punishable with imprisonment for life, the Court acquitted him from the offence punishable under Section 450 IPC. The appeal was disposed of in the terms above. [Hanumant v. State of Maharashtra,2018 SCC OnLine Del 12142, dated 29-09-2018]