Penetrative Sexual Assault

Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: Polluting the sanctity of the relationship of the teacher and students, a teacher committed rape and penetrative sexual assault with minor students, the Division Bench of Sabina and Satyen Vaidya, JJ., noting the harrowing incidents expressed that the said is a sad reflection of the present-day society where a most platonic relationship was exploited.

Alleged Sexual Assault of 8/10 girl students by their teacher

Parents of 8/10 girl students informed the complainant that appellant Raj Kumar had indulged in sexual assault of the girl students in the school. FIR under Sections 354-A, 377, 376(2)F, 506, 202 & 119 of the Penal Code, 1860 and Sections 4, 6, 21(2) of the Protection of Children from Sexual Offences Act, 2012 was filed.

Appellant Sardar Singh was also framed under charges under Sections 21(2) of the POCSO Act and Section 202 of the IPC

Harrowing incidents | Minor children

11 year old deposed that Raj Kumar opened the zip of his pants and opened her salwar and inserted his finger in her private part and threatened her to not disclose the same. After that kissed.

9 year old stated that the appellant inserted his penis in her mouth as well as 7/8 girls of the school and used to kiss them. He also used to discharge white fluid in their mouth. The said act was repeated 7-8 times.

Another, 9 year old said that the appellant used to call her in the room when no other person was there and insert his penis in her mouth.

Students stated that they had informed about the incidents of madam Savita prior to reaching the police.

Continuing the above acts, he asked a student to rub his penis but when she refused, he forcibly rubbed his penis with her hands and on one incident he took the student to a newly constructed house and inserted his penis in her mouth and asked her to swallow the white discharge.

All the victims deposed that appellant Raj Kumar used to sexually assault them.

High Court found that the appellant Raj Kumar was guilty of the offence of rape as well as penetrative sexual assault.

The victims are young minor girls and were virtually in the guardianship of appellant Raj Kumar. Appellant Raj Kumar was the Teacher of the victims.

Appellant Sardar Singh who was aware of the misdeeds of Raj Kumar but never reported the same was also liable for punishment under Section 202 of IPC and Section 21(2) of the POCSO Act. Lower Court had rightly convicted and sentenced Raj Kumar.[Raj Kumar v. State of H.P., Criminal Appeal No. 142 of 2019, decided on 21-3-2022]

Advocates before the Court:

For the Appellant: Ram Murti Bbisht, Advocate

For the Respondent: Vikrant Chandel, Deputy Advocate General

Case BriefsSupreme Court

Supreme Court: In a case where a 65-year-old man committed aggravated penetrative sexual assault on his 4-year-old neighbor, the bench of MR Shah* and BV Nagarathna, JJ has observed that any act of sexual assault or sexual harassment to the children should be viewed very seriously and all such offences of sexual assault, sexual harassment on the children have to be dealt with in a stringent manner and no leniency should be shown to a person who has committed the offence under the POCSO Act.

“Children are precious human resources of our country; they are the country’s future. The hope of tomorrow rests on them. But unfortunately, in our country, a girl child is in a very vulnerable position. There are different modes of her exploitation, including sexual assault and/or sexual abuse. In our   view, exploitation of children in such a manner is a crime against humanity and the society. Therefore, the children and more particularly the girl child deserve full protection and need greater care and protection whether in the urban or rural areas.”

The Court observed that by awarding a suitable punishment commensurate with the act of sexual assault, sexual harassment, a message must be conveyed to the society at large that, if anybody commits any offence under the POCSO Act of sexual assault, sexual harassment or use of children for pornographic purposes they shall be punished suitably and no leniency shall be shown to them.

“Cases of sexual assault or sexual harassment on the children are instances of perverse lust for sex where even innocent children are not spared in pursuit of such debased sexual pleasure.”

In the case at hand the accused was aged approximately 65 year old man took advantage of  the  absence of the parents of his 4-year-old neighbor, when her mother went to fetch water and her father had gone to work, and committed aggravated penetrative sexual assault on her. The Court observed that this act demonstrated the mental state or mindset of the accused.

“As a neighbour, in fact, it was the duty of the accused to protect the victim girl when alone rather   than exploiting her innocence and vulnerability. The victim was barely a four years girl. The accused   –   appellant was the neighbour. The accused instead of showing fatherly love, affection and protection to the child against the evils of the society, rather made her the victim of lust.”

The Court observed that it is a case where trust has been betrayed and social values are impaired. Therefore, the Court was of the opinion that the accused as such does not deserve any sympathy and/or any leniency. However, the punishment provided for the offence under Section 6, at the relevant time was ten years RI and which may extend to imprisonment for life. Considering that now the accused is aged 70-75 years of age and is suffering from Tuberculosis (TB), the Court was of the opinion that if the life sentence is converted to fifteen years RI and the fine imposed by the Trial Court confirmed by the High Court to be maintained, it can be said to be an adequate punishment commensurate with the offence committed by the accused.

[Nawabuddin v. State of Uttarakhand, 2022 SCC OnLine SC 161, decided on 08.02.2022]

*Judgment by: Justice MR Shah

Counsels

For accused: Advocate Saju Jacob

For State: Advocate Krishnam Mishara

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Joymalya Bagchi and Bivas Pattanayak, JJ., in a penetrative sexual assault case of a 14-year-old girl, expressed that,

“Crime against woman is increasing as a whole. Such type of crime is a direct insult to the human dignity of the society and therefore imposition of any inadequate sentence not only results in injustice to the victim and the society in general but also stimulates criminal activities.”

An appeal was directed against the decision of lower Court arising out of POCSO Case, convicting and sentencing the appellant for offence punishable under Section 448 and 506 of the Penal Code, 1860 and Section 6 of the POCSO Act, 2012.

The appellant used to come to the house of victim for last 7, 8 years and he used to call the girl as his granddaughter. Taking advantage of the absence of other family members, the appellant trespassed into the house of the victim and forcibly committed rape on her repeatedly on different occasions for 6-7 months.

In view of the complaint lodged by the victim under Section 376(2)(i) of IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 investigation was initiated against the appellant and charge sheet was filed against the appellant under Section 376(2)(i) of the Indian Penal Code and Section 6 of the POCSO Act, 2012.

Analysis and Discussion

High Court noted that during the period of occurrence, the victim girl was aged just above 14 years.

Bench remarked that,

In a case relating to sexual assault and rape, the evidence of the victim girl is very much vital and if found reliable can form the basis of conviction of the accused without seeking for further corroboration. 

High Court noted that the victim herself lodged the written complaint, wherein she had categorically stated that the appellant, who called her grand daughter, committed rape upon her many times. She tried to protest against such unsocial nasty work, but the appellant threatened her by killing her along with her younger brother, father and grandmother.

FIR is never an encyclopedia rather it is information made at the first instance which sets the criminal law into motion. Criminal courts should not be fastidious with mere omissions in the first information statements, since such statements cannot be expected to be a chronicle of every detail of what happened nor to contain an exhaustive catalogue of events which took place [Rattan Singh v. State of H.P, (1997) 4 SCC 161]

Bench observed that the statement of the victim was recorded under Section 164 CrPC, the defence indicated certain omissions in her statement made in the Court during deposition.

Though, the Court noted that,

There are no material contradictions or contrary circumstance to disbelieve the evidence of the victim girl.

Court opined that the evidence of the victim girl before the Court, her written complaint and her statement before the Judicial Magistrate was consistent with the fact that the appellant committed forcible rape upon her on several occasions.

Hence, the evidence of the victim girl was very reliable to act upon. 

Pregnancy

From the evidence on record, it was quite apparent that the victim was pregnant of 5/6 months at the time of lodging of the complaint and she gave birth to a stillborn baby.

Though the investigating agency did not conduct any DNA Test, the Court held that the said was a drawback on the part of the investigating officer in not conducting the DNA test but that cannot be a ground to discredit the testimony of the victim girl.

Therefore, from the consistent evidence of the victim regarding the sexual assault perpetrated upon her by the appellant which resulted in her pregnancy and other evidences on record and the medical evidence stating of pregnancy, there cannot be any doubt that due to such sexual assault, she became pregnant.

High Court remarked that,

“…the evidence of the victim girl and other evidence as discussed above unerringly point to the guilty of the appellant as the person who ravished the victim on several occasions by entering into their house during the absence of other family members resulting in her pregnancy and also of threatening the victim with consequences to kill her and her family members in order to coerce her from disclosing such fact to her family members.”

Bench also observed,

In the normal course of human conduct, this unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to anyone, overpowered by feeling of shame and her natural inclination would be avoid talking about it to anyone, lest the family name and honour is brought into controversy.

With respect to delay in lodging an FIR, High Court expressed that it was not unmindful of social stigma attached to the nature of the offence which might have also attributed to the delay.

It was apparent that the appellant committed rape upon the victim aged just above 14 years forcibly. Therefore, as per the defining provisions of the IPC, the consent of the victim becomes immaterial. Accordingly, the presumption of law under Section 114(A) of the Evidence Act that the act was committed without the consent of the victim was of no relevance in the facts and circumstances of the present case.

Further, it was added that the presumption of law envisaged under Section 29 of the Act is also up against the appellant to have committed aggravated penetrative sexual act upon the victim as the same has not been rebutted.

As there was also evidence of trespass into the house of the victim by the appellant for committing the heinous offence of rape and subsequent threatening of killing the victim and her family members for not disclosing the fact to anyone the ingredients of Section 448 and Section 506 (II) of the Indian Penal Code is also established, Bench stated.

In view of the above discussion, the conviction of the appellant by the trial court was upheld.

In the present case, offence of penetrative sexual assault has been committed upon a helpless victim of 14 years which is inhumane and shakes the judicial conscience.

Sentence

High Court held that a term of 14 years of rigorous imprisonment will be commensurate with the nature of offence and accordingly sentence for rigorous imprisonment for life imposed in respect of Section 6 of POCSO Act, 2012, is reduced to rigorous imprisonment for a term of 14 years. The sentence of fine together with default clause as imposed by the trial court is maintained. The sentence in respect of offence under Section 6 of the POCSO Act, 2012 is modified to the aforesaid extent.

The conviction of the appellant was upheld.[Israil v. State of West Bengal, 2022 SCC OnLine Cal 209, decided on 2-2-2022]

Advocates before the Court:

For the Appellant: Mr Sourav Chatterjee, Adv.

Md. M. Nazar Chowdhury, Adv.

Ms Priyanka Saha, Adv.

For the State: Mr Binay Panda, Adv. Mrs Puspita Saha, Adv.

Case BriefsHigh Courts

Allahabad High Court: Anil Kumar Ojha, J., while addressing a matter of child sexual assault, expressed that,

Putting penis into the mouth does not fall in the category of aggravated sexual assault or sexual assault. It comes into the category of penetrative sexual assault which is punishable under Section 4 of POCSO Act. 

Lower Court’s decision whereby the appellant was convicted and sentenced under Sections 377, 506 of Penal Code, 1860 and under Section 6 of the POCSO Act was challenged.

Prosecution’s Case

Complainant lodged an FIR against the appellant stating therein that the appellant came to complainant’s house and took his son aged about 10 years in a temple and gave Rs 20 to the complainant’s son and said to suck his penis.

Further, the appellant put his penis into the mouth of the victim and thereafter, the victim came to the house having that Rs 20. On being asked about the said money, the victim told the entire incident.

Analysis, Law and Decision

It was noted that the informant and victim supported the prosecution story, and the evidence of prosecution witnesses were cogent, trustworthy, credible and probable, hence finding with regard to conviction was confirmed.

Whether offence under Section 5/6 POCSO Act or Section 9/10 POCSO Act was made out against the appellant?

Proved facts of the case were that the appellant had put his penis into the mouth of the victim aged about 10 years and discharged semen therein.  

Bench stated that the offence committed by the appellant would neither fall under Section 5/6 of the POCSO Act nor under Section 9(m) of the POCSO Act because there was penetrative sexual assault in the present matter as appellant had put his penis into the mouth of the victim.

The above-said act comes under the category of penetrative sexual assault punishable under Section 4 of the POCSO Act.

Therefore, High Court convicted the appellant under Section 4 of the POCSO in place of Section 6 of the POCSO Act.

In view of the above conclusion, the appeal was partly allowed. [Sonu Kushwaha v. State of U.P., 2021 SCC OnLine All 810, decided on 18-11-2021]

Advocates before the Court:

For the appellant: Anil Kumar Verma, Noor Muhammad, Yogesh Kumar Srivastava

For the Respondent: GA

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

Bombay High Court: The Division Bench of Sadhana S. Jadhav and N.J. Jamadar, JJ., pens down the decision in the instant matter with the thought that “protector turns predator”.

The order of the Special Judge, Greater Bombay has been challenged, hereunder the appellant has been convicted for the offences punishable under Sections 6 and 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). Further, in view of Section 42 of the POCSO Act, no separate sentence was imposed upon the appellant for the offence punishable under Section 376 of Penal Code, 1860 despite being found guilty.

The victim was 11 years old at the time of the alleged occurrence. Victim had come to reside with the brother of the accused whose wife was a distant relative of the victim.

Victim apprised the Court about the circumstances in which she came to reside in the house of the brother of the accused and found herself with the accused since 23-10-2014. Victim further informed that during those 4 days, while the victim and the accused were at home, the accused undressed and asked her to undress as well.

Victim was exploited on 3-4 occasions and stated the details of the same. Further, she was also threatened that in case she discloses the said incidents, then the accused will bring 3-4 more people to exploit her and thereafter kill her.

A victim stands on higher pedestal than an injured witness.

Bench stated that it is well settled that the victim of a sexual assault is not an accomplice. Nor is it an immutable rule of law that the testimony of a survivor cannot be acted without corroboration in material particulars.

Reference to the Supreme Court decision in Mohd. Imran Khan v. State Government (NCT of Delhi), (2011) 10 SCC 192, wherein it was observed that:

“It is trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury.”

“…If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.”

Further, the Court recorded that indeed there were no signs suggestive of the use of force and vaginal/anal intercourse, nor any external injuries were noticed on the person of the victim.

In view of the above background, Special Judge was persuaded to hold that there was no material to show that the victim was subjected to penovaginal intercourse by the accused. However, there was evidence to indicate that the accused committed penetrative sexual assault by way of digital penetration and sexual assault by touching and pressing breasts of the victim.

In the High Court’s opinion, the Special Judge’s approach was justifiable.

The evidence can not be appreciated bereft of the circumstances and context.

The hapless and unsuspecting victim found herself at the mercy of the accused, with nobody else in the house. Hence the victim’s claim that the accused threatened her with dire consequences and subjected her to sexual exploitation cannot be discarded.

Further adding to the observations, Bench stated that there was no material to indicate, nor an endevour was made to elicit in the cross-examination of the victim ‘M’, that the latter offered resistance. In the absence of forcible resistance, the absence of injury on the person of the victim is not sufficient to discredit the victim’s evidence.

Therefore Court found no infirmity in the impugned judgment and order of conviction for the offences punishable under Sections 6 and 10 of the POCSO Act and Section 376 of IPC.

A.P.P., P.P. Shinde submitted that no leniency should be given to the accused as he preyed a child of 11 years and left a permanent scar on the mind of the victim.

There can be no duality of opinion that the sexual assault cases are required to be dealt with sternly and the offenders deserve no leniency.

The evidence laid in the instant case undoubtedly justifies the finding of penetrative sexual assault within the meaning of clause (b) of Section 3 of the Pocso Act, 2012. The act also falls within the dragnet of clause (b) of Section 375 of the Penal Code which defines the offence of rape, as substituted by the Criminal Law (Amendment) Act, 2013.

Therefore, a sentence of rigorous imprisonment of 10 years, which is the minimum prescribed by Section 6 of the POCSO Act, would meet the ends of justice.

Impugned Judgment of Conviction for the offences punishable under Sections 6 and 10 of POCSO Act, 2012 and Section 376 (2) of IPC stands confirmed.[Fazal Mehmud Jilani Dafedar v. State of Maharashtra, 2020 SCC OnLine Bom 3380, decided on 26-11-2020]

Advocates who appeared in the instant matter:

For Appellant: Sayed Shabana M. Ali

A.P.P. for the State: P.P. Shinde

Case BriefsHigh Courts

Bombay High Court: Vinay Joshi, J., altered the conviction for rape and penetrative sexual assault to an act of aggravated form of sexual assault punishable under Section 10 of the POCSO Act in light of touching the breast of the child.

Appellant aged 67 years was convicted under Sections 376 and 450 of the Penal Code, 1860 and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

Accused was acquitted from the charge of committing offence punishable under Section 377 IPC.  Accused challenged the conviction in the instant appeal.

Informant was residing along with his family members, including his daughter/victim girl aged 8 years. Two sons of the informant had been to their school and the minor victim was alone at the house as she was ill. In the afternoon the informant returned to his house for lunch and found that the house was locked from within, therefore, he peeped from the window and saw that appellant by lifting frock of the victim was moving his hand on her neck, cheek and chest.

Later, the informant shouted to open the door and hurriedly left the place. Victim disclosed that the accused moved his hand on her body, kissed her as well as put his finger in his anal part.

In regard to the above reference, informant lodged a report against the said incident.

Special Judge framed charge under relevant provisions of IPC and POCSO Act further on the appreciation of evidence held that the prosecution succeeded in proving the offence punishable under Sections 376 and 450 IPC, Sections 4 and 6 of the POCSO Act.

The prosecution case, in short, is about rape and aggravated penetrative sexual assault by the accused on a minor victim aged 8 years.

Analysis and Decision

Bench stated that the act of accused of touching the breast of the victim with sexual intent amounts to an aggravated form of sexual assault, which is punishable under Section 10 of the POCSO Act.

Since the medical evidence nowhere supported that there was insertion or penetration of finger into the anal region, it is doubtful whether the accused penetrated his finger into the anal region of the victim.

If two view emerges from the situation, the view favourable to the accused would take precedence. On mere assumption or possibility, the accused cannot be convicted.

 All the sexual assaults on children below 12 years amount to an aggravated form of sexual assault.

With regard to the age of the accused, which is near about 70 years, the imprisonment of 5 years would meet the ends of justice. From the set of circumstances laid down, it is clear that the house-trespass was merely in order to commit an offence punishable with imprisonment, which is punishable under Section 451 of the Penal Code, 1860.

In view of the above, criminal appeal as partly allowed.

Conviction under Section 376 of IPC and Sections 4 and 6 of the POCSO Act, is hereby quashed and set aside, instead the accused was convicted for the offence punishable under Section 10 of the POCSO Act and.

Further, instead of conviction under Section 450 IPC, the appellant is convicted for the offence punishable under Section 451 of the IPC.

Hence appellant will be entitled to set off under Section 428 of the CrPC. [Tukaram Ashruji Khandare v. State of Maharashtra, 2020 SCC OnLine Bom 2802, decided on 22-10-2020]

Advocate for the appellant, R.V. Gahilot and H.R. Dhumale, A.P.P. for the respondent.

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

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]

Punjab and Haryana High Court
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]