Penetrative Sexual Assault

Case BriefsHigh Courts

Sikkim High Court: A Division Bench of Bhaskar Raj Pradhan and Meenakshi Madan Rai, JJ., while upholding the impugned judgment of the Special Judge explained the elements that amount to “Gang Rape”.

In the present case, appellants were convicted by Special Judge (POCSO) wherein the appellants were found guilty under Section 5(g) of the Protection of Children from Sexual Offences Act, 2012 and under Section 376 D of the Penal Code, 1860.

Special judge held that the victim was a 15-year-old minor.

Counsel for the appellants was Birendra Pourali and Assistant Public Prosecutor for the respondent was S.K. Chettri.

Counsel for the appellant submitted that the prosecution had failed to establish that the victim was a minor by leading cogent evidence. Medical evidence led by the prosecution completely belies the allegation that the appellants had committed gang rape on her and therefore her evidence is not reliable.

APP for respondent submitted that failure to find any marks or injuries on the person of the appellants does not lead to an inference that they had not committed the offence and conviction may be based upon the sole testimony of the victim. He further cautioned the Court that it must be sensitive while dealing with the cases involving sexual offences.

PW 8 deposed that the victim disclosed to her that she had been sexually assaulted by the driver of a TATA vehicle, She also deposed that she had accompanied the police and the minor victim to the police of occurrence where the victim had been sexually assaulted.

Victim deposed before the Court and following was her deposition:

“I know the two accused persons who are present before the Court. Few months back, I had gone to Siliguri with one Puran daju (my cousin). At Siliguri I met accused Vodafone at Big Bazaar shopping complex. After being familiar with him I came to Jorethang in his vehicle on the following day. I had spent the night in my cousin?s place at Siliguri. The said accused brought me to Jorethang where I met my aunt. In fact, the handy boy of accused Vodafone was also there when we came to Jorethang from Siliguri. That evening I again met accused Vodafone near Jorethang bridge. He told me that he would drop me to Melli. Accordingly, I boarded his truck and we started proceeding towards Melli. His handy boy was also there. On the way to Melli the accused stopped the truck at one place and asked his handy boy to leave. He then raped me by putting his pishab garney(penis) into my pishab garney(vagina). He did it once. After sometime the other accused came over there in an Ecomate truck. His young handy boy was also with him. Accused Vodafone asked me to get inside that Ecomate truck. The other accused and his handy boy then raped me inside the said truck. Later, while we reached the Melli Checkpost (on Sikkim border) for entering in West Bengal I was spotted by the police. I told the police about the above incidents”

High Court’s Decision

Court stated that if the woman is below the age of eighteen, consent is immaterial. To constitute rape otherwise, consent is vital. If it is a case falling under the POCSO Act, consent is immaterial.

Birendra Pourali’s submission that the prosecution failed to prove that the victim was a minor gather importance. For the said contention, Court stated:

If the defence desired to question the veracity of the information in the birth certificate, they ought to have objected to its exhibition which would have, if taken at the appropriate point of time, enabled the prosecution tendering the evidence to cure the defect and resort to such mode of proof as would be regular. Victim’s statement that she was sixteen was not even questioned during her cross-examination.

Thus, the Court came to the conclusion for the above that the Special Judge accepting the birth certificate as that of the victim and holding that the victim was a minor at the time of the offence brooks no interference.

Bench further laid down the Explanation 2 to Section 375:

“An unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.”

Court referring to the deposition of the victim stated that when she says that she was raped by the appellants there are no reason to doubt the same. More so, in the present case her deposition is corroborated by forensic evidence. Victim being a minor, the question of consent has no relevance.

Further, the Court laid down the definition of Section 376 D that defines gang rape and elaborated the following as the ingredients that constitute the same:

(i) a woman is raped;

(ii) (a) she is raped by one or more persons constituting a group, or (b) she is raped by one or more persons acting in furtherance of a common intention;

Victim’s deposition as mentioned above clearly leads to that the appellants were known to each other and that the common intention was clearly reflected by the element of participation in action at the place of occurrence.

Two vital ingredients necessary for constituting the offence of gang rape being satisfied, the conviction of the appellants under Section 376D IPC cannot be faulted.

Appellants have also been convicted for gang penetrative sexual assault on a child under section 5(g) of the POCSO Act. Conviction of the appellants for the commission of aggravated penetrative sexual assault must also be upheld.

Lastly, the Court stated that, in view of the failure of the prosecution to seek enhancement of the sentence, we are precluded from imposing the fine as mandated. The appeal is thus dismissed in the above terms. [Raj Kumar Darjee v. State of Sikkim, 2019 SCC OnLine Sikk 223, decided on 17-12-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. declined to quash criminal proceedings pending against the petitioner even while holding that Section 19(1) of the Juvenile Justice (Care and Protection of Children) Act, 2015 was a mandatory provision and the Children’s Court did not comply with the same.

The petitioner was alleged to have committed penetrative sexual assault on the victim. He was booked under Sections 342 376 IPC, and Section 6 of the Protection of Children from Sexual Offences Act, 2012. The Juvenile Justice Board completed the preliminary assessment in terms of Section 15 of the JJ Act and held the petitioner was required to face trial as an adult. The case was transferred to the Children’s Court which framed charges as aforementioned. The petitioner, represented by Harsh Prabhakar and Anirudh Tanwar, Advocates, contended that the Children’s Court failed to comply with the mandatory requirement of Section 19(1)of the JJ Act and as such, the proceedings were liable to be quashed. Per contra, Hiren Sharma, APP appearing for the State, opposed the petition.

The question before the High Court was as to whether Section 19(1) of the JJ Act is mandatory or directory and the effect of non-compliance thereof. Notably, in terms of Section 19(1), after receipt of the preliminary assessment from the Board under Section 15, Children’s Court is to decide: (i) as to whether there is need for trial of the child as an adult as per the provisions of CrPC, and/or (ii) there is no need for the trial of the child as an adult, in which case, it shall conduct an inquiry as a Board and to pass orders in accordance with Section 18.

The Court observed: “The expression used in Section 19(1) ‘may decide’. The expression ‘may’ used in Section 19 does not give an option to the Children’s Court to decide or not to decide in terms of Section 19, but the expression ‘may decide’ is an option to the Children’s Court to chose between option (i) and option (ii) i.e. as to whether there is need for trial of the child as an adult or there is no need for trial of the child as an adult.” It was held that this becomes clear when Rule 13 of the JJ Model Rules, 2016 is examined.

The Court held: “Reading of Rule 13 in conjunction with Section 19 of JJ Act clearly shows that it is obligatory on the part of the Children’s Court to take a decision after receipt of the preliminary assessment report from the Board as to whether there is need for trial of the child as an adult or as a child. Appropriate speaking order recording reasons for arriving at the conclusion is to be passed by the Children’s Court.”

Admittedly, in the present case, there was non-compliance with the requirement of Section 19(1) by the Children’s Court. However, the Court was of the opinion that the same would not vitiate the proceedings thereafter undertaken, but would be an irregularity which was curable. The reason being, that in both eventualities, i.e. trial as an adult and trial as a child, the proceedings have to continue before the Children’s Court. In terms of Rule 13(7), in case the Children’s Court decides that there is no need for a trial of the child as an adult, then, it has to conduct an inquiry as if it were functioning as a Board and follow the procedure for trial of the summon cases. Whereas, in case the children’s Court decides to try the child as an adult, then, it has to conduct the trial following the procedure of trial by Sessions Court. in either eventually, charge/notice which is to be framed on the same set facts, would not be altered in so far as the offence is concerned. The only difference is as to the procedure to b followed by the Children’s Court for trial.

Finding support for the position taken by it from the Judgments of the Supreme Court in Willie (William) Slaney v. State of M.P., (1995) 2 SCR 1140 and Supdt. and Remembrancer of Legal Affairs v. Anil Kumar Bhunja, (1979) 4 SCC 274, the High Court held that in the present case there was no prejudice caused to the petitioner. In such view of the matter, the Court found to the ground to interfere with the impugned order of framing charges or the proceedings conducted thereafter.

However, since the Children’s Court had not passed any order in terms of Section 19 read with Rule 13(1) and Rule 13(6), the children’s Court was directed to pass an order in terms thereof. The petition was disposed of accordingly.[CCL L.K v. State, 2019 SCC OnLine Del 9075, decided on 09-07-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Petitioner had filed a petition before a Single Judge Bench comprising of Gurvinder Singh Gill, J. to quash an FIR registered under Sections 377 and 506 IPC and Sections 3 (which explains what amounts to penetrative sexual assault) and 4 of Protection of Children from Sexual Offences Act, 2012 and any other consequential proceedings. The petitioner in this petition prayed for quashing of the FIR on the ground that the matter had been compromised between the parties.

For quashing, FIR petitioner submitted the report of the Magistrate before whom their matter was compromised. Both petitioner and victim were minor thus were represented through their respective guardians. It was found through the report that the compromise was agreed upon by all in front of respectable persons of society out of their free will.  It was opined that the compromise was genuine and was voluntarily done without any coercion or undue influence.

Petitioner pleaded to the court to consider the present case though offence was non-compoundable, on the ground that petitioner/accused was in his tender age at the time of the incident. Respondent contended that the offences under Sections 3 and 4 of POCSO are serious in nature and cannot be quashed on the basis of a compromise.

The High Court observed that since accused or petitioners were juveniles they should be given an opportunity to reform and since the matter had already been compromised the FIR and proceeding consequential thereto in question should be quashed. Therefore, FIR was quashed and the petition was allowed. [Sunil Kumar v. State of Punjab,2018 SCC OnLine P&H 1542, decided on 05-10-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of S. Muralidhar and Vinod Goel, JJ. dismissed a criminal appeal filed against the judgment of the trial court whereby the appellant was convicted under Section 6 read with Section 5(m) and (n) of the Protection of Children from Sexual Offences Act, 2012.

The appellant was accused of committing the offence of penetrative sexual assault on her 5 years old daughter. The appellant was convicted by the trial court primarily on the testimony of the victim-daughter. Learned counsel for the appellant submitted that the victim seemed too intelligent for her age and that she was tutored by her mother, wife of the appellant.

The High Court rejected the submissions of the appellant and observed that the victim child was clear about what she underwent. Her responses during cross-examination reinforced that. She categorically stated that the appellant committed sexual assault upon her. Further, the child victim had suffered a trauma which was hard to forget, and it was unimaginable that she would falsely accuse her father. Thus, the Court held that there was no cause to interfere with the judgment impugned. The appeal was dismissed while directing Delhi State Legal Services Authority to ensure that the victim received appropriate compensation in accordance with the Victims’ Compensation Scheme for Delhi formulated under Section 357A CrPC. [Ram Dass v. State,2018 SCC OnLine Del 10291, dated 02-08-2018]

Case BriefsHigh Courts

Sikkim High Court: A Single Judge Bench comprising of Meenakshi Madan Rai, Acting CJ, dismissed a criminal appeal filed against the judgment of the trial court convicting the appellant under Section 4 of the Protection of Children from Sexual Offences Act, 2012.

Allegations against the appellant were that he had committed an offence of penetrative sexual assault on the victim – a 15 year old girl. He was convicted by the trial court and sentenced to 9 years of imprisonment. The appellant assailed the said judgment contending that the evidence produced by the prosecution was full of contradictions. It was also submitted that the testimony of the victim was also questionable.

The High Court heard the submissions made on behalf of the appellant and was of the view that no ground for interference with the judgment impugned was made out. The testimony of the victim had to be considered in light of her age and the level of her education and understanding. Submissions questioning other evidence on record were also rejected holding that minor contradictions in the evidence have no bearing on the prosecution case. Moreover, the Court referred to Section 29 of POCSO Act which raises a presumption, of commission of certain offences mentioned therein, against the accused. Further, Section 30 was perused and it was observed that the appellant had failed in the opportunity extended to him under the said section to rebut the presumption of culpable mental state which arose under Section 29. Consequently, the judgment impugned was upheld and the appeal was dismissed. [Tanam Limboo v. State of Sikkim,2018 SCC OnLine Sikk 149, dated 02-08-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Vipin Sanghi and P.S. Teji, JJ, modified the conviction of the appellant to a conviction under Section 18 of the POCSO Act (hereinafter the Act) instead of Section 6 of the Act.

The appellant made only one submission that the offence proved against the appellant is not of ‘penetrative sexual assault’ and as such does not fall under Sections 5(k) and 6 of the Act. Counsel for the appellant relied on the testimonies of the prosecutrix and other prime witnesses in which none of them had claimed penetration. Medical examination of the victim and the appellant also indicated absence of penetration. There also were some contradictions in the testimony of the prosecutrix which did not corroborate with the reports of medical examination. The counsel pleaded that, at best, the conviction could be of attempt to commit penetrative sexual assault and the most the appellant could be convicted under is Section 18 of the POCSO Act.

The Court held that in the absence of penetrative sexual assault, offence and sentence under Sections 5(k) and 6 cannot be made out. Consequently, the sentence was set aside. However, the evidence led in the case established an offence under Section 18 of the Act. Hence, the appellant was sentence to 10 years’ rigorous imprisonment with a fine of Rs. 10,000. In default of payment of fine, he was to undergo simple imprisonment for six months. Appeal allowed. [Manoj v. State, Crl. Appeal 647/2014, decided on 21.11.2017]