Bombay High Court
Case BriefsHigh Courts

   

Bombay High Court: Bharati Dangre, J. while adjudicating a bail application which dealt with an unfortunate incident of a girl (14 years) alleged to have been sexually ravaged by the applicant, expressed disappointment over the snail speed of the trial. The Court emphasized on the purpose of the Protection of Children from Sexual Offences (POCSO) Act, 2012 which came to be enacted by establishing special courts for trial of such offences.

The girl later had given birth to a child and the APP was directed to ascertain the status of the trial. The Court reminded that it was only when the writ was issued by this Court, the trial commenced with a snail speed, with a result that as on date only one witness has been examined in the current case. The statement of the victim girl itself came to be recorded after five years. It was further added that the pace of the trial was defeating the very purpose of the POCSO Act. The Court mentioned that the manner in which the Special Courts are proceeding with the POCSO trial, dealing with the offenders under the Special Statute, enacted with a specific avowed purpose, to prevent exploitation of minor/children and punish the offenders itself is being defeated by the procedure that is adopted by the Special Courts.

The Court was disturbed by the fact that only one Court is a Special Court for trying the offences under the POCSO Act, whereas other Courts which are assigned with POCSO cases are also required to take some other assignment. The Court directed Principal Judge of the Court of Sessions at Greater Mumbai, to submit a report about the pending POCSO cases in Mumbai and also provide the details about how many POCSO Courts were designated as ‘Special Courts' along with number of cases pending with these Courts. The in-charge Judge was also asked to submit a report about the appointment of Special Public Prosecutors in the POCSO Court as well as compliances which were mandated, including the interpreter or expert as contemplated under section 38 of the POCSO Act.

[Azaruddin N. Mirsilkar v. State of Maharashtra, Bail Application No.466 of 2021, decided on 21-06-2022]


Advocates who appeared in this case :

Ms Aishwarya Agarwal with Azimuddin N. Kazi, Advocate, for the Applicant;

Mrs Anamika Malhotra, APP, for the State


*Suchita Shukla, Editorial Assistant has reported this brief.

Madras High Court
Case BriefsHigh Courts

Madras High Court: Stating that two-finger test cannot be permitted to be continued, the Division Bench of R. Subramanian and N. Sathish Kumar, JJ., directed the State Government to ban the practice of two-finger test on victims of sexual offences by the medical professionals.

In the present matter, the accused was convicted for life sentence for the offences under Section 5(I) read with Section 6(1) of the Protection of Children from Sexual Offences Act, 2012 with a fine of Rs 1,00,000 for an offence under Section 363 IPC along with a fine of Rs 20,000.

Accused was running a taloring shop and had befriended the victim girl aged about 16 years when she went for tailoring training for about two months. Further, the accused had enticed the girl and had sexually abused her.

Upon medical examination it was found that the accused had penetrative sexual intercourse with the victim girl.

The accused denied having committed the crime.

Sessions Judge held that the prosecution had proved the guilt of the accused and on taking of the fact that the accused had repeated sexual intercourse with the victim girl, the accused was guilty of the offence under Section 5(I) of the POCSO Act.

Analysis, Law and Decision

As per Section 363 of Penal Code, 1860, a person who takes or entices any minor under 16 years of age if a male, or under 18 years of age if a female, or any person of unsound mind, from the lawful guardianship of a guardian, is said to have kidnapped the minor.

In the present matter, the victim girl had walked out of her house on her own in the pretext of having some old clothes stitched. She had travelled with the accused and was caught after nearly 24 hours and never made an attempt to escape from his custody.

Therefore, the essential ingredients of the offence under Section 363 IPC were not made out.

Bench concluded that the trial Court was right in its finding that the accused was guilty of the offences under Section 5(I) and Section 6(1) of the POCSO Act.

Further, the Court added that no doubt, the accused was a married person he could be said to be guilty of deceiving the victim girl on a promise of marriage, but the evidence of the victim girl would show that there was a love affair between the two and the accused had stated that he could not live without seeing her.

Hence, in Court’s opinion, a minimum sentence of imprisonment for a period of 20 years would suffice.

While concluding the matter, the Court stated that,

“…it is necessary for us to put an end to the practice of the two-finger test. We find that the two-finger test is being used in cases involving sexual offences particularly, on minor victims.”

High Court directed the State Government to ban the practice of two finger test on victims of sexual offences by the medical professionals.

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

Direction

The conviction and sentence for the offence under Section 363 IPC is set aside in toto. The conviction for the offences under Section 5(l) and 6(1) of the POCSO Act is confirmed and the life sentence is, however, reduced to 20 years of rigorous imprisonment. The fine of Rs 1,00,000/- and the default sentence of simple imprisonment for 3 months, is confirmed. [Rajivgandhi v. State, 2022 SCC OnLine Mad 1770, decided on 21-4-2022]


Advocates before the Court:

For Appellant: Mr. S. Sivasubramanian

For Respondent: Mr. A. Thiruvadi Kumar, Additional Public Prosecutor

Case BriefsHigh Courts

Chhattisgarh High Court: Deepak Kumar Tiwari, J., held that, when the accused has not played any active role or persuaded the victim and the victim voluntarily left the protection of her parents and having capacity to know her action, no offence of abduction is made out.

Instant appeal was directed against the decision of Additional Sessions Judge (POCSO) whereby the appellant had been held guilty for the offence under Sections 363, 366 of Penal Code, 1860 and Section 4 of the POCSO Act.

Prosecution’s Case


Prosecutrix was aged about 17 years and the appellant, both were having a love affair. On one night the prosecutrix ran away from the house after which the father of the prosecutrix lodged a missing report.

In 2018, the prosecutrix was recovered from the custody of the appellant and out of the said relationship, a child was born who was 3 months of age.

On completion of the trial, the appellant vide impugned judgment was convicted and sentenced.

Analysis, Law and Decision


High Court noted that the prosecutrix deposed that two year prior to the incident, she was having a love affair with the appellant and when her family members came to know about the said fact, they started searching groom for her. When the said circumstances came to the knowledge of the prosecutrix, she voluntarily left her house and went to Raipur.

Later, she approached the appellant and asked him to take her along with him, on which, the appellant said that since she was a minor, she could not accompany him. Further, on prosecutrix’s constant requests and pressure and threat to commit suicide, the appellant gave up, reached Raipur and took her along with him.

Further, the prosecutrix specifically stated that the appellant had done nothing wrong with her or against her will.

The prosecutrix even deposed that since the family was against her relationship, hence the appellant lodged the FIR against the appellant.

Bench expressed that, 

In case of sexual molestation, the evidence of the prosecutrix is evident.

In view of the statement of the prosecutrix, it appeared that she had not inculpated the appellant in any manner and nor said anything against him instead she had specifically deposed that her family members wanted to get her married against her will to some other boy, therefore, she voluntarily left her house.

Hence, in view of the above-said circumstances, the appellant assisted her due to having a loving affair.

Therefore, it could not be proved that the appellant had abducted the prosecutrix from the lawful guardianship of her parents and induced in any manner and further looking to the statement of prosecutrix, the appellant had not committed any wrong with her.

High Court found that the trial Court did not properly appreciate the evidence available on record.

Lastly, the Court directed for the release of the appellant. [Anil Ratre v. State of Chhattisgarh, 2022 SCC OnLine Chh 625, decided on 25-3-2022]


Advocates before the Court:

For Appellant Mr. Pragalbh Sharma, Advocate

For Respondent /State Ms. Shubha Shrivastava, Panel Lawyer

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 BriefsDistrict Court

Court of Special Judge under the Protection of Children from Sexual Offences Act, 2012, Fort Greater Mumbai: Expressing that essence of a woman’s modesty is her womanhood, H.H. The Special Judge A.D.DEO, remarked that incidents of unwelcome, inappropriate touch by the male accused in the journey are very common sexual assault experience by every common woman travelling in public transport, but ignored by each one of them, thinking that there is no likelihood of coming across, the same assailant after the journey.

Accused was prosecuted for the offence punishable under Section 354-A of the Penal Code, 1860 and under Section 8 of the Protection of Children from Sexual Offences Act, 2012 and under Section 91 of the Rights of Person with Disability Act, 2016 for making unwelcome and explicit touch to two female co-passengers while travelling in handicap compartment of local train thereby committing sexual assault upon them.

 Details of incident


Informant was a minor victim 1 who was travelling as escort to her blind aunt i.e., victim 2 in handicap compartment of local train and they were going to attend a programme arranged by National Association for Blind.

Victim was the escort of PW-2, and they were travelling by local train from Badlapur to CSTM. As they wanted to go to Reay Road, they intended to change train at Kurla. When the Ghatkopar Station passed the informant, and her aunty went towards the right-side door.

It was stated that the informant was standing near the door, at that time she heard the voice of her aunt and saw that she was slapping a person. On asking what happened, her aunt said that the person had made inappropriate touch to her breast.

Upon that the informant said that the assailant of her aunt, while passing beside her (i.e. informant), had touched her breast and pressed it.

In view of the above, FIR was filed.

Analysis and Discussion


The Court noted that both PW-1 and PW-2 gave vivid details about the incident.

The Bench found the testimony of PW-1 and PW-2 to be creditworthy, cogent, consistent and reliable.

Further, it was stated that the innocence of PW-1 was reflected from her version that when the accused made unwelcome explicit touch to her breast, she ignored it, thinking that there was rush.

Court expressed that,

“What constitutes, an outrage to female modesty, is nowhere denied. The essence of woman’s modesty is her sex. It is the virtue, which is attached to a female, owning to her, sex.”

In the present matter, the culpable intention of the accused was the crux of the matter and the reaction of the woman was very relevant.

Additionally, the Court said that with regard to the nature of the allegation and the manner in which sexual offences are committed i.e. those are mostly committed secretly, it is also required to be pondered whether sole testimony of victim in such, nature of the allegation,

Decision


Upon evaluating and appraising the testimony of the prime witnesses PW­1 and PW­2 and the attendant factors and circumstances of the case, clinchingly, unequivocally it is elicited that the prosecution had been able to prove its case beyond reasonable doubt that the accused with sexual intent, made unwelcome touch to the victim girl aged 17 years, which was explicit sexual overtures.

“…incident as deposed by the two female victim PW­1 and PW­2 i.e. of unwelcome, inappropriate touch by the male accused, in journey, is a very common sexual assault experienced by every common woman traveling in public transport, but ignored by each one of them, thinking that there is no likelihood of coming across, the same assailant after the journey. Hence, almost all such assaults go unreported.”

As per Section 7 of the POCSO Act, whoever with sexual intent inter alia does any other act, which involves physical contact without penetration, is said to commit sexual assault.

Hence, the accused was guilty of committing an offence under Section 7 POCSO Act punishable under Section 8 of POCSO Act, Section 354 IPC and Section 91 of the Rights of Persons with Disability Act, 2016.

In view of the impact of child sexual abuse and on balancing the mitigating and aggravating circumstances, Court passed the following order:

  • Accused stands convicted as per Section 235(2) of CrPC for the offence under Section 7 punishable under Section 8 of the POCSO Act to undergo rigorous imprisonment for a term of 3 years and a fine of Rs 25,000 and in default to undergo a term of 6 months.
  • Accused stands convicted for offence under Section 354 and imprisonment for 3 years and fine of Rs 5,000.
  • Accused stands convicted for the offence under Section 91 of the Rights of Persons with Disability Act and to undergo imprisonment for a term of 1 year and fine of Rs 5,000 and in default to undergo a term of 15 days.
  • Accused to surrender his bail bonds and to be taken into custody.

[State of Maharashtra v. Mohsin Allauddin Chougule, Special Case No. 468 of 2017, decided on 22-2-2022]


Advocates before the Court

Ms. Jyoti Sawant, Spl PP for the State.

Mr. Pujari, Advocate for the Accused.

Case BriefsHigh Courts

Calcutta High Court: While expressing that, Sexual perversity is not only a personal disease, but also a social menace; The act itself is not merely a solitary harrowing experience of the victim; The trauma and the ensuing stigmatization pervades every aspect of her social life; The effect of trauma and insecurity in the mind of the victim are more pervading when she is sexually harassed and assaulted by her stepfather, Bibek Chaudhuri, J., laid down additional guidelines with regard to non-identification of sexual victim’s identity as the same was disclosed in the instant case

In the present matter, the defacto complainant lost her first husband in an accident and while she was staying with her two children she had an acquaintance with one Prabir Bhuia the appellant.

Later the appellant developed love relations with defacto complainant and married for the second time.

In 2014  her daughter told her that during midnight when everybody was sleeping the appellant touched several sensitive parts of her body inappropriately. On hearing this a hot altercation ensued between the de facto complainant and the applicant during which she was severely beaten by the appellant however the matter got solved after receiving an apology from the appellant.

In November, 2014 the defacto complainant noticed that her husband was sleeping in the adjacent room where her daughter used to sleep by the side of her daughter keeping his hand on her body. She asked her daughter about the incident when she said that she wanted to sleep with her mother, but the appellant forcibly seized her and resisted her from going to the bed of her mother. Over the said incident there was a quarrel between the defacto complainant and her husband for a week.

In December 2014, the appellant knocked at the door of the room of the daughter of the defacto complainant where she was sleeping. The daughter used to sleep in the adjacent room closing the door from inside on being directed by her mother. Further, he also called the daughter of the defacto complainant over the phone repeatedly and he tried to take the mobile phone of his wife from below her pillow and when she resisted, the appellant assaulted her severely.

Defacto complainant also raised hue and cry and on hearing the same, the daughter opened the door and came out of her room. Though the defacto complainant somehow entered the room of her daughter and closed the door from inside.

Police registered the case under Sections 7 and 12 of the POCSO Act and took up the case for investigation.

Special Judge framed charge against the appellant under Sections 354 and 324 of the IPC and Section 8 of the POCSO Act.

The above-said decision was challenged.

Analysis, Law and Decision

In the present matter, the statement of the victim girl was consistent on one aspect that the appellant being his stepfather used to touch inappropriately different parts of her body and even the mother of the defacto complainant in the FIR stated that the appellant used to touch-sensitive parts of her body.

Though, there were minor discrepancies in the evidence of the victim but such discrepancies cannot be held to be material contradictions. Evidence of the victim was corroborated by her mother, defacto complainant.

The victim stated in most clear terms that her stepfather used to touch her different parts of body inappropriately.

 Hence, Court had no reason to disbelieve the evidence of the victim and her mother.

The fact that even after the incident the appellant took the victim to various schools for collecting admission forms for class XI did not matter most because the victim was allowed to go with the appellant being accompanied by her brother.

The above-said was the most unfortunate part of the story when a little brother was engaged in the act of policing to prevent their stepfather from committing any indecent act upon the victim.

Whether the specific act of the accused amount to an offence of sexual assault within the meaning of Section 7 of the POCSO Act?

A girl attaining the age of 15-16 years only understands whether any touch on her body is appropriate or inappropriate act. She can only understand whether a person touches her with sexual intent or not.

In the present matter, the victim girl more than once stated that her stepfather touched different parts of her body inappropriately and on one occasion during her sleep, she woke up and found that her father was trying to touch her breast and she removed the hand of the appellant.

High Court opined that the prosecution was able to establish the charge against the accused/appellant beyond any shadow of reasonable doubt.

Therefore, no infirmity was found in the decision of the Additional Sessions Judge.

Identity of the Victims

Keeping in view the social object of preventing social victimization or ostracisms of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of High Court or lower Court, the name of the victim should not be indicated.

We have chosen to describe her as ‘ victim’ in the judgment.

It is the duty of the Special Court under the POCSO Act to see that the name of the victim was never disclosed in course of the investigation and if the same was disclosed, it was his statutory duty to stop such disclosure.

The Court stated that unfortunately the name of the victim was disclosed by the defacto complainant in the written complainant and in the formal FIR her name was recorded and during the investigation also her name was often recorded in her statements under Section 161 of the Code of Criminal Procedure and even under Section 164 of the Code recorded by the Judicial Magistrate.

Inspite of the statutory protections and several guidelines of the Supreme Court, the victim’s name was not kept concealed.

In view of the above, in addition to the guidelines of the Supreme Court, this Court was of the view that the following guidelines were to be issued for effective compliance of Section 33(7) of the POCSO Act:

  1. The Officer-in-Charge of every police station shall ensure that in the written complaint the name of the victim girl shall not be stated. The victim girl shall be identified by her age, her father’s name and other particulars sufficient to identify the victim during investigation without disclosing her name.
  2. In the formal FIR and charge-sheet the name of victim girl shall not be stated by the Investigating Officer. On the other hand, she shall be described as “victim”.
  3. In the column of witnesses in the charge-sheet the victim girl shall not be referred to by her name but as “victim.”
  4. In her statement recorded under Section 161 of the Code of Criminal Procedure, the Investigating Officer shall not record the name of the victim. The said statement shall be referred to as “statement of the victim”.
  5. Similarly, while recording the statement of the victim under Section 164 of the Code of Criminal Procedure, the learned Judicial Magistrate shall not record her name. On the other hand she shall record the statement as “the statement of the victim”.
  6. In order to identify the victim, she shall take help of the parents of the victim. He shall also endorse such identification of the victim by her parents at the top of the statement of the victim recorded under Section 164 of the Code of Criminal Procedure.
  7. The Judicial Magistrate shall obtain the signature or LTI of the victim on a separate page after her statement is read over and explained to the victim by him. The signature of the victim along with the certificate of the Magistrate in separate page shall be kept separately in a sealed cover and the Special Judge shall be entitled to open the said sealed envelop, if necessary during trial.
  8. In the deposition sheet of the victim girl, the Special Judge shall not record the name of the victim. He/she shall be identified as “victim” in the deposition sheet.
  9. The signature of the victim witness in her deposition shall be taken by the Special Judge in a separate sheet and the said sheet of paper with signature and certificate by the Special Judge shall be kept in the record in sealed envelop. The Appellate Court shall open the envelop case of the identity of the victim girl being made an issue.
  10. In the judgment the name of the victim girl shall never be stated or recorded by the Special Judge.
  11. The Medical Officer shall not record the name of the victim girl in the Medical Examination Document. On the other hand, the victim girl shall be identified as the “victim” in Medical Examination Report. Similarly, in forensic report victim’s identity by taking her name is prohibited.

[Prabir Bhuian v. State of West Bengal, 2021 SCC OnLine Cal 3063, decided on 16-12-2021]


Advocates before the Court:

For the appellant: Mr Abhijit Basu, Adv., Mr J.N. Pal, Adv., Mr Arghya Kamal Das, Adv.

For the Respondent/de facto complainant: Mr Sukanta Chakraborty, Adv., Mr Zuber Ahmed, Adv., Mr Anindya Halder, Adv.

For the State: Mr Ranabir Roy Chowdhury, Adv., Mr Mirza Firoj Ahmed Begg, Adv.

Case BriefsHigh Courts

Delhi High Court: While observing that, rape is an offence which not only violates the physical body of the survivor but is also capable of inflicting trauma on the mental psyche which can end up persisting for years, Subramonium Prasad, J., keeping in mind the nature of the offence, expressed that it inhabits a duty to consider such matters with utmost care.

Instant applications were filed for grant of bail to the petitioners in FIR registered under Sections 376, 376D, 506 and 34 of the Penal Code, 1860 read with Section 6 of the POCSO Act.

Background

Prosecutrix was a minor when she was first assaulted by Suraj, she further alleged that a video had been shot and the prosecutrix was constantly threatened that if she did not agree with the demands of Suraj, the video would be circulated. 

Analysis, Law and Decision

Purpose of the POCSO Act is to treat minors as a class by itself and to treat them separately so that an attempt to sexual assault or harass or molest or abuse the minor entails graver and stricter consequences. The ultimate purpose of this law is the paramount well-being of the child and to protect minors from flagrant violence inflicted on them.

 Question for Consideration

Whether the liberty of the petitioner can be dispensed with, in light of the continuing nature of the heinous act?

It was noted that the petitioner’s name was mentioned both in the FIR as well as Section 164 statement by the prosecutrix before the Metropolitan Magistrate.

Important factors while deciding a bail application are:

i. Whether there is a prima facie reasonable ground that the accused has committed the offence.

ii. Nature and gravity of the accusation

iii. Severity of punishment in the event of conviction

iv. Danger of absconsion of the accused.

v. Reasonable apprehension that witnesses may be influenced or evidence may be tampered with

vi. The likelihood of the offence being repeated.

vii. The danger of justice or processes thereof being stifled by grant of bail.

It was noted from a reading of the statements under Section 164 CrPC that Suraj first raped the prosecutrix and he made a video of the incident, and on the next day four of his friends i.e. Atul (petitioner herein), Sachin, Anurag and Rohit came to Inderpuri forest and Suraj started showing the video to the prosecutrix and said that if the prosecutrix did not agree with his demands, he would upload the video on the internet and after that she was constantly threatened.

Prosecutrix, even added that out of 6 people who rape her, she could name 5 and identify the 6th one, though she does not remember his name.

High Court noted that the prosecutrix was consistently traumatized since she was 13 years of age till, she attained 16 years of age and during the said time she got pregnant as well.

Charges against the accused were framed including the petitioners herein for offences under Sections 376(2), 376(D), 506(ii) read with Section 34 of Penal Code, 1860 and Section 6 of the POCSO Act.

Hence, petitioners were accused of a very serious offence and the fact that they can threaten the prosecutrix could not be ruled out.

High Court held that the bail could not be granted till the examination of prosecutrix was not conducted.

Considering the fact that the petitioners are youngsters, the Trial Court is requested to expedite the trial and examine the prosecutrix within a period of six months from today.

 In view of the above observations, the bail applications were dismissed. [Suraj v. State, 2021 SCC OnLine Del 5263, decided on 10-12-2021]


Advocates before the Court:

Bail Appln. 2542 of 2021:

For Petitioner: Rajpal Kasana, Advocate

For Respondent: Neelam Sharma, APP for the State with SI Sandeep, PS Mahrauli.

                            Neha Mathen, Advocate for the prosecutrix

Bail Appln. 3082 of 2021:

For Petitioner: Amit Kumar and Dinesh Kumar and Rohit Yadav, Advocates

For Respondent: Neelam Sharma, APP for the State with SI Sandeep, PS Mahrauli.

                             Neha Mathen, Advocate for the prosecutrix

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Sadhana S. Jadhav and Prithviraj K. Chavan, JJ. confirmed the death sentence awarded by the trial court to the accused−appellant for committing heinous crime of brutal sexual assault on a child aged 3-years and 9-months, and after that committing her murder. While confirming the death sentence in this rarest of rare cases, the High Court observed:    

“The act of the accused is gruesome and is committed in a diabolic manner. It is a heinous offence. It is unimaginable that a cheerful, frolicking child enjoying with her pet would provoke the feelings of lust in a man who is a father of two daughters and a son. The perversity in the mind of the accused is apparent and therefore, we are of the opinion that the aggravating circumstances in the present case outweigh the mitigating circumstances placed before the court in the course of hearing of the appeal.”

Factual Matrix

In the instant proceedings, the State sought confirmation of death sentence passed by the trial court against the accused. The accused also filed a criminal appeal against the order of the trial court whereby he was convicted and directed to be hanged by neck till he is dead for having committed offences punishable under Sections 302, 363, 376(2)(i) and 201 IPC, and Sections 8 and 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

On the unfortunate day of 30-9-2013, the 3-years and 9-months old victim went out of her house to play with her dog, but did not return. Upon searching, her father found the dog tied to the watchmen’s chawl which was just next to the room of the accused (a watchman), but could not find her daughter. A missing report was lodged and investigation began. The dead body of the victim was found lying in a mud pond. The accused was arrested. The autopsy of the dead body showed that she was brutally sexually abused before she was put to death. On completion of trial, the accused was convicted and sentenced as mentioned above.

Law, Analysis and Decision

Circumstantial evidence

The instant case rested on circumstantial evidence. The father of the victim stated that while searching for his daughter, he saw their dog tied to a window in front of a room in the watchmen’s chawl. The legs of the dog were smudged by mud. The father saw the accused standing behind the house and there was mud smudged on his legs as well. Another prosecution witness, a watchman, stated that he saw the accused with a small girl and a dog standing on the road which lead towards the forest. Another witness, a rounder/supervisor attached to the Maharashtra Guard Force Security, stated that on the day of the incident the accused was absent from his duty as watchman. Upon being enquired, the accused told him that he was under stress and wanted to return to his village immediately.  In fact, in his cross-examination, this witness further disclosed that the accused had divulged to him that he had committed a great blunder and therefore desired to return to his village.

The High Court noted that the prosecution evidence indicated that the accused was last seen with a small girl and a dog in the afternoon of the day of the crime. Upon meticulous appreciation of evidence of the prosecution witnesses, the Court found that the testimony of none of the witnesses was shattered by way of cross-examination. The sterling testimony of these witnesses deserved to be relied upon.

The Court noted that the evidence would establish that the accused was lastly seen with a child who was found dead soon thereafter. This was to be read in consonance with the fact that the dog was tied to the window of a room just next to the house of the accused. Apart from last seen theory, the scene of offence panchanama as drawn by the investigating agency further substantiated the case of the prosecution.

Medical evidence

Apart from the circumstantial evidence, the medical evidence also assumed importance. The accused was taken for medical examination on 4-10-2013. Upon clinical examination, it was observed that there was abrasion on foreskin and congestion of glance penis. It was further opined that the age of injury was 4 to 5 days old.

The Court recorded that there was nothing to deny the medical opinion. The accused did not assign any reason for the injuries on his private parts. The injuries went unexplained. However, it showed that the accused had sexual intercourse with a small child 2 to 4 days ago. This opinion was corroborated by the evidence of another doctor who performed autopsy on dead body of the victim.

Referring to Modi’s Medical Jurisprudence which discussed the nature of injuries on the person of an accused in a case of forcible sexual intercourse, the Court noted that there would be injuries on the penis which would be within the special knowledge of the accused. In fact, the injuries were within the special knowledge of the accused and he ought to have given explanation for the same.

Extra-judicial confession

Another incriminating circumstance against the accused was the evidence of the supervisor to whom the accused made an extra-judicial confession to the extent that he was under stress. The specific reason for stress was not divulged. However, the accused confessed that he had done a wrong thing.

The Court observed that there is no doubt that an extra judicial confession is a weak piece of evidence. However, it reflected upon the conduct of the accused on the day of incident.

Quantum of sentence

The High Court heard the accused on the point of sentencing through video conferencing. The Court spoke to the accused personally and he did not show any remorse. The only mitigating circumstance put forth by him was economic stringency of his family. The Court was convinced that the act committed by the accused was gruesome and revolts human conscience.

After relying on the decisions in Vasanta Sampat Dhupare v. State of Maharashtra, (2017) 6 SCC 631 and Ramnaresh v. State of Chattisgarh, (2012) 4 SCC 257 on the principles of sentencing, the High Court recorded that the accused did not for a moment thought of the precious life of the minor child. It did not strike him for a moment that he himself  happens to be a father of two daughters, who are yet to see the life. The crime smacks of degradation of a girl child, depravity and perversity of his mind. The child was sexually assaulted in barbaric and inhuman manner. It is diabolic in nature and thereafter, it was a brutal murder which makes it the rarest of rare case. The Court observed:

“It is such an incident that parents of every small girl child would feel a chill down the spine before sending their undefended, innocent, minor girl child to see the rainbow as they would be scared as to whether she would fall a prey to any monster like the present one. It is the safety of a girl child which is of paramount importance to a society.”

The Court concluded that it is the bounden duty of the courts to impose a sentence which is proportionate to the offence committed by an accused. The accused in the instant case deserved death penalty, as any alternative punishment would be unquestionably foreclosed taking into consideration the inhuman and barbaric act of the accused. The prosecution has proved the chain of aggravating circumstances as against the mitigating circumstances beyond reasonable doubt. The act of rape and the manner in which the child was murdered and abandoned in the muddy pond invited indignation and abhorrence. Hence, the death penalty awarded to the accused was confirmed. And the criminal appeal filed by the accused was dismissed. [State of Maharashtra v. Ramkirat Munilal Goud, 2021 SCC OnLine Bom 4562, dated 25-11-2021]

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: Anuja Prabhudessai, J., opined that where the witness is of tender age (as in the instant case before the Court), it is obligatory upon the Judge to ascertain the intellectual and understanding capacity of the child.

Appellant has assailed the judgment in POCSO Special Case wherein it was held that the appellant was guilty of offences punishable under Sections 354, 354-A read with Section 34 of Penal Code, 1860 and Section 10 of the POCSO Act.

Analysis, Law and Decision

Instant case was based mainly on the testimony of the victim girl who at the time of the incident was barely 4 years of age.

It is well settled that conviction can be based on the sole testimony of a child witness provided the witness is competent to depose to the facts and is a reliable witness.

Section 118 of the Indian Evidence Act, 1872 which deals with competency of a person to testify provides that:

“All persons shall be competent to testify unless Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.

Explanation –A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.”

 Bench observed that, a child is a competent witness provided he is capable of understanding the questions put to him and is able to give rational answers.

Court elaborated the analysis, by stating that since the witness was of tender age, it was obligatory upon the Judge to ascertain the intellectual and understanding capacity of the child and to record her satisfaction in respect of competency of the child witness to depose to the facts of the case. Records indicated that the Judge did not question the victim to ascertain whether she was able to understand the questions put to her.

Well-Settled Principle of Law

In criminal jurisprudence, no finding can be rendered either on mere surmise or conjecture and every finding should be based on satisfactory and acceptable evidence.

High Court’s opinion with regard to the decision of Lower Court Judge

Bench noted that PW2 did not know the Appellant and that she had identified him only as a painter. No test identification was conducted to establish the identity of the Appellant. She had identified him in the court for the first time about two years from the date of the incident.

It was also observed by this Court that testimony of PW 1 indicated that prior to the incident, she did not know the appellant either by name or face.

The evidence of PW6 did not indicate that the Appellant was engaged to do the work of painting on 11/05/2017 on which date, the alleged incident had occurred. There was thus no cogent evidence to establish the identity of the Appellant.

In Court’s opinion, the Designated Judge grossly erred in holding the appellant guilty of the offence. Hence the appeal was allowed and the impugned judgment was quashed and set aside. [Laxman Govind Varma v. State of Maharashtra, 2021 SCC OnLine Bom 4137, decided on 26-10-2021]


Advocates before the Court:

Mr. S.P. Singh for the Appellant.

Mr. P.H. Gaikwad, APP for the State.

Ms. Ameeta Kuttikrishnan for Respondent No.2. 

Case BriefsHigh Courts

Karnataka High Court:  A Division Bench of G I Narendar and M I Arun JJ. allowed the appeal and set aside the order of acquittal.

The facts of the case are such that complainant filed a complaint that his daughter/victim and the accused Santhosh who were both working in a coffee estate fell in love with each other. The accused made his daughter believe that he would marry her and when no one was there in the house, he came and had forcible sexual intercourse with his daughter and that from past 20 days he has gone away to his native without telling anybody. Presently, his daughter Preethi is seven months pregnant and accordingly, he has sought for initiating criminal proceedings against the accused Santhosh. The instant criminal appeal was filed under Section 378(1) and (3) Criminal Procedure Code i.e. Cr. PC praying to grant leave to filed an appeal against the judgment and order of acquittal dated 01-02-2020 passed by Additional Sessions and Special Judge Chikkamagaluru acquitting the respondent accused for the offence punishable under Section 376 (2) (n) Penal Code, 1860 i.e. IPC and Section 5 (j) (ii) and of Prevention of Children from Sexual Offences Act, 2012 i.e. POCSO Act.

The investigation was conducted and statement of the victim was taken on record. The Trial Court acquitted the accused as he found that all the material witnesses turned hostile and thus did not permit further examination of the witnesses.

The main issue to be dealt in the instant matter is whether the trial Court has erred in not directing conduct of DNA test of the child and the accused, whether it erred in not permitting the prosecution to examine other witnesses.

Counsel appearing for the accused submitted that presently, the accused and the victim are married and are leading a happy married life. Counsel for the victim submitted that pursuant to the said acquittal, the accused has abandoned her and the child and is untraceable.

The Court after perusing all the documents placed on record and production of witnesses observed that the guilt of the accused can be established only after examination of all the witnesses as desired by the prosecution. It is a specific case of the prosecution that it has necessary evidence to prove the guilt of the accused and it is desirous of making necessary application to have DNA test conducted and that the material witnesses have turned hostile only on the false promise of the accused.

The Court thus held “trial Court clearly erred in not permitting the prosecution to lead necessary evidence to prove the guilt of the accused.”

[State of Karnataka v. Santhosh, Criminal Appeal No. 414 of 2021, decided on 03-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For Appellants: Mr. Vijaya Kumar Magaje and Ms. Rashmi Jadhav

For Respondents: Mr. N R Ravikumar

Case BriefsHigh Courts

Bombay High Court: Sexual violence knows no boundaries, it occurs in every country, across all parts of society, Bharati Dangre, J., while noting a case of sexual harassment caused to a child aged 17 years due to which she took the step of ending her life, rejected the bail of the accused.

Background

A young girl aged 17 years jumped from the balcony of a flat and succumbed to injuries.

After a span of 96 days of the said incident, mother of the girl lodged a complaint against the applicant attributing to him that he had abetted a commission of suicide by her daughter on a fateful day.

Mother of the deceased got to know through the friend of her daughter that she had been receiving dirty messages from the applicant. On enquiring the same, daughter also showed her mobile phone which had the messages and a folder in the gallery, right after that the deceased barged out of the room. On inspecting, the screenshots were found in the mobile phone and immediately, by keeping mobile on the bed, informant followed her daughter, who by that time, jumped from the gallery of other bedroom.

On realizing the severity of the shocking incident, the informant became unconscious and she was informed that her daughter was taken to the hospital. The informant recollect that in the hospital, her daughter was little conscious and on being inquired as to why did she take the extreme step, she murmured that because of “Gaurav uncle”. She did not utter anything further and was administered treatment in the hospital.

A Chit which was found on the dressing table of the daughter was also given to police and then the CR was registered invoking Sections 306, 354A, 354-B of Penal Code, 1860 and Section 4 and 8 of the POCSO Act.

Following was written on the chit:

“Mummy, I have not told you about one person, Gaurav Uncle in our house. For no reason, he often come close to me and attempted to touch my private parts. I concealed the same from you, but that was my mistake. I kept mum because I thought if I disclose it to you, it would result into quibble. However, he messaged me. Before one week, he was talking to me about bad things. The screen shots of the said message are stored in my mobile in the folder ‘SS’. On receipt of the message, I have blocked him, but yesterday night, he texted me. I was unable to understand what should I do and how should I disclose it. After you come to know about this, please do not quarrel and let the things continue to remain as they are. You and Papa should not fight. Bye…. Take care ….. Because even if I blocked him on the mobile, I will have to face him some day. I carry no feelings for him in my mind, still he said so and further Kaki narrating it to aunt and no matter how much I tolerate, I will be blamed”

Analysis, Law and Decision 

Bench noted that the deceased was a young girl who was hesitant to disclose the ill-intentions of the applicant, who was her own uncle.

The present matter revolved around an intimate relationship of the deceased with her own uncle, which posed a barrier for the victim girl to report the said incident to anyone in the family, but she chose to disclose it to her close friend.

The chit which was scribed by the deceased referred to a message and screenshots of which were found in the mobile phone. From the screenshots, it was evident that, a message was forwarded by the applicant which was responded by the deceased by typing that she was not interested in talking to him. The unhappy tone was set and in the note which was scribed, the deceased had opened her mind to her mother where she spoke about his ill-deeds and also offered an explanation as to why she concealed it from her mother.

Court noted that the deceased had expressed her helplessness since she was apprehensive that even if she had blocked him, she would have to face him again and take the blame though, she no feeling in her mind.

“…screen shots from the mobile make it apparent that the applicant was harassing the deceased and inspite of her strong protest, was seeking something from her, leaving her in a despondent state.”

“The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person who was abetted.”

“…abetment as contemplated under Section 107 of the IPC, may be by instigation, conspiracy or intentional aid and the words uttered in feet of anger or omission without any intention being attributed cannot be termed as instigation.”

High Court stated that the young girl felt cornered by the conduct and demeanor of her own uncle, which was unexpected since she held him on a high pedestal as her own father and was unable to vent her anguish on account of the close proximity of the family with that of the applicant.

Deceased suffered the consequences mutely for a year.

 While concluding the matter, Court made certain significant observations that, a child may be subjected to sexual abuse or exploitation at home too.

Unfortunately, we have not been able to create an atmosphere in the Society where parents, teachers and adults in company of the child can identify signs of abuse and make sure children received care and protection.

 In the present matter, the fear of stigma, not being believed and being blamed, found the deceased in a precarious situation and left her isolated and insecure and which persuaded her to end her life.

In view of the above stated discussion, the accused does not deserve liberty and another reason would be his close proximity with the family of the deceased and there would be every likelihood that on release he may pressurize them.[Gaurav v. State of Maharashtra, Criminal Bail Application No. 2687 of 2021, decided on 1-09-2021]


Advocates before the Court:

Mr Aabad Ponda, Senior Counsel with Advocate Sanket S. Kulkarni for the applicant.

Mr S.H. Yadav, APP for the State. Mr Kavyal P. Shah for respondent 2.

Case BriefsHigh Courts

Madras High Court: P. Velmurugan, J., directs Schools to keep a complaint box to make the victims complain about the sexual assault freely and keys of the same to be kept under the control of Secretary District Legal Services Authority.

Factual background

On the date of occurrence, when PW 2, the victim girl was going to attend School while crossing the appellant’s residence, the appellant/accused invited her to his house and with an intent to assault her sexually saying that he will tell the story of Jesus, sexually assaulted her.

It was stated that the appellant touched the victim girl all over her body, removed the bottom of Churidar, embarrassed her and kissed her in right cheek with sexual intent, which involved physical contact without penetration and further the accused threatened the victim girl to come to his house with an intention to repeat the same on her.

In view of the above set of circumstances, the present case was registered against the appellant.

Victim girl stated that after the above-stated occurrence she went to her classroom and intimated the same to her friend who was examined as PW 7 and she clearly spoke about the offence committed by the appellant.

It was noted that the age of the victim girl was 12 years at the time of occurrence and hence the victim was a child under the definition of Section 2(1)(d) of POCSO Act.

High Court stated that the appellant being the head of Religious Institution committed sexual assault on the victim child, who was aged about 12 years at the time of occurrence. Hence the act of appellant came under Section 9(f) punishable under Section 10 of the POCSO Act.

Court on perusal of the evidence produced, opined that the accused failed to rebut the presumption under Section 29 and 30 of the POCSO Act. Trial Court rightly appreciated the evidence of the prosecution and came to the conclusion that appellant/accused committed an offence under Section 9(1) punishable under Section 10 of the POCSO Act.

Bench dismissed the criminal appeal and upheld the trial Court’s decision.

High Court’s recommendation

Further, the Court expressed that normally female students would get fear in lodging complaints against Teacher or Management of School regarding sexual offences, considering their future, hence Government of Tamil Nadu shall form a committee at every school, consisting of the Social Welfare Officer, the Secretary of District Legal Services Authorities, female Police Official not below the rank of District Superintendent of Police, District Educational Officer, female Psychiatrist and Physician from the Government Hospital.

District Educational Officer may inspect the School once in a month to get grievance of the female students with regard to sexual assault and give confidence to the female children to come forward to make complaints against the sexual offenders, who may be a teaching or non-teaching staff and also the members of the Management of the School. [S. Jayaseelan v. State,  2021 SCC OnLine Mad 2580, decided on 12-07-2021]


Advocates before the Court:

For Appellant: Mr S. Samuel Raja Pandian for M/s. M.K. Selvakumar

For Respondent: Mrs T.P. Savitha Government Advocate (Crl.Side)

Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., addressed a matter in regard to child pornography.

An instant petition for anticipatory bail was filed.

Prosecutions’ Case

Petitioner browsed, downloaded and transmitted child pornographic material by using Airtel sim through his e-mail and Facebook Account.

Child Pornography an offence or not?

It is stated that viewing pornography privately will not constitute an offence. As of date, no provision exists that prohibits such private acts and there are even some that elevate it as falling within one’s right to free expression and privacy.

Section 67-B of the Information Technology Act, 2000 penalises every kind of act pertaining to child pornography.

 Whoever publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct; or creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or facilitates abusing children online, or records in any electronic form own abuse or that of others pertaining to sexually explicit act with children is liable to be punished.

Therefore, even viewing child pornography constitutes an offence.

How the offending activity that took place in a private place came to light?

As per a news report quoting a police officer warning citizens that they must understand that activities on cyber space are always monitored.

It was stated that there is an international NGO called NCMEC (National Center for Missing & Exploited Children) and it maintains a Cyber Tipline. There is a Memorandum of Understanding between the National Crime Records Bureau (NCRB), India and NCMEC, USA and that provides access to the material available with NCMEC. One such Tipline report sent to the respondent police implicated the petitioner.

Further, it was noted that the said occurrence took place almost one year back and appeared to be a one-off act. Hence petitioner was directed to hand over his phone and sim card and other involved devices to the respondent.

Court expressed that custodial interrogation was not warranted.

Expressing that Child Pornography is a serious issue warranting a firm approach, Bench added that it would make a distinction between a one time consumer and those who transmit or propagate or display or distribute in the digital domain.

It is obvious that the moment one steps into digital space, one comes under the surveillance either of the State or those manning the social networking sites. If one is zealous about privacy, the only option is to stay outside such networks. Of course, in the current world, it is not a viable option.

 Though Central and State Governments are mandated to spread awareness under Section 43 of the POCSO Act about the provisions of the State, yet alone the same may not be sufficient since the “Big Brother” watching us may not deter those who are determined to indulge in such acts.

Adding to the above, it was stated that moral education is the only way out.

It is only the Bharatiya culture that can act as a bulwark. The menace of child pornography can be tackled only if all of us inculcate the right values.

 [P.G. Sam Infant Jones v. State, 2021 SCC OnLine Mad 2241, decided on 11-06-2021]


Advocates before the Court:

For Petitioner: Mr. Venkateshwaran. R.

For Respondent: Mr. T. Senthilkumar, Government Advocate (Crl.Side)

Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri, J., stressed the reliability of the child victim’s testimony in a sexual assault case and upheld the trial court’s decision.

Instant appeal was preferred under Section 374(2) read with Section 383 CrPC. Appellant was convicted under Section 6 of the POCSO Act in 2013.

Facts

‘X’ was 12 years old at the time of the alleged incident and the accused was her stepfather. It was stated that Accused gave beatings to the brothers of ‘X’ and later removed the clothes of ‘X’ and his own and penetrated his urinal part in the vagina of Ms ‘X’.

Analysis

In the present matter, Bench noted that the child victim stated that while the appellant was doing wrong things with her Mohd. Rafiq had seen them from the hole of the door and called her name. She opened the bolt of the door and Mohd. Rafiq gave beatings to the appellant and called the police. The child victim also identified the appellant.

In so far as the testimony of the child victim is concerned, it has been repeatedly held that if the testimony of the child victim inspires confidence, it is sufficient to record the conviction.

Bench stated that Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. [Refer: State of Punjab v. Gurmit Singh, (1996) 2 SCC 384]

High Court observed that, on perusal of the statements made by the child victim during investigation and the trial show that she had consistently stated that on the night of the incident, the child victim along with her siblings had gone to sleep in the house of their neighbour from where they were called by the appellant.

Thereafter, both her brothers after being beaten, were sent upstairs and thereafter, the appellant removed her clothes as well as his own clothes and inserted his male organ and committed rape upon her. The child victim had also stated that the appellant had inserted his male organ in her mouth. She had also stated that the appellant had committed the offence two-three times earlier also.

Child Victim’s Testimony — Reliability?

The statement of the child victim to the effect that an incident had occurred on the intervening night of 25th and 26th find support not only from the testimony of her two minor younger brothers ‘R’ and ‘A’ but also from the testimony of Mohd. Rafiq.

Court observed that the statements of the child victim made during the investigation and the trial were consistent about the incident and role of the appellant. Therefore, Court concurred with the finding of the trial court that the child victim’s testimony was trustworthy, reliable and admissible.

As per Section 29 of the POCSO Act, there is presumption regarding the guilt of the accused and the appellant failed to dislodge the statutory presumption under the said Section.

Hence, the impugned judgment and order on sentence are upheld.

Lastly, the Court added that State is directed to provide compensation to the victim in view of the Delhi Victim Compensation Scheme, 2015 within a period of 2 months from the date of passing of this Judgment.[Sunil Kumar v. State of NCT of Delhi, 2021 SCC OnLine Del 2391, decided on 25-05-2021]


Advocates before the Court:

For the Appellant: Mr Anwesh Madhukar, Advocate (DHCLSC) alongwith Ms. Prachi Nirwan, Advocate

For the Respondent: Mr Ashok Kr. Garg, APP for State

Case BriefsHigh Courts

Sikkim High Court: Meenakshi Madan Rai, J., rejected a bail application wherein the Petitioner, Principal of a School, aged about 58  years, was accused of the offence under Section 354 of the Indian Penal Code, 1860, Section 8 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. He was arrested on 03-03-2021.

The counsel for the petitioner, Mr B. Sharma, Senior Advocate with Mr B.N. Sharma, Mr Bhupendra Giri and Mr Charles L. Lucksom submitted that the petitioner was been falsely implicated in the instant case and that he was a responsible person running a well established Private School and was also a Politician having been elected as a Councillor and given the responsibility of Vice Chairman of the Gorkha Territorial Administration. That, he was a well reputed Social Worker and owned large property in South Sikkim. That, the investigation in the matter had been completed and he was no longer required in custody. It was further urged that he was suffering from Diabetes Mellitus, Heart disease, Dyslipidemia, Hypertension, Hyperuricemia and Renal Calculus, and the Doctor has observed that a Hypoglycemic attack may occur at any time of the night and has to be tackled urgently, this ground alone sufficed for grant of bail.

Opposing the bail application, counsel for the respondent Mr Yadev Sharma, submitted that the victim was the child of 17 years and was studying in the School run by the Petitioner as the Principal and in lieu of paying personal attention to the victim he touched her inappropriately and gave indirect hints seeking sexual favours from her. He also verbally abused her, made her do household chores and give him massages. That, since the date of his arrest, the Petitioner has remained in the Hospital with the purpose of defeating the law. That, Charge-Sheet is yet to be submitted and further investigation in the matter is being continued during the course of which, it has come to light that the mother of the victim who was the Complainant, was being pressurized to change her Statements against the Petitioner and also that he had perpetrated the same acts on other girl Students as he did on the victim.

The Court considered several factors before deciding on this matter of bail which were:

  • existence of prima facie case against the accused,
  • the nature and gravity of the accusations,
  • the penalty likely to be imposed,
  • chances of the accused absconding on being enlarged on bail,
  • the antecedents and standing of the accused in society;
  • likelihood of repetition of the offence,
  • reasonable apprehension of evidence being tampered with and witnesses being influenced; and
  • the course of justice being defeated by grant of bail.

The Court considered the FIR and the medical documents on record and observed that there was no imminent threat to the life of the petitioner. The Court further held that the gravity of the offence was necessary to be taken into consideration and the acts of the Petitioner were indeed heinous having been perpetrated on a minor under his care and guidance.

The Court while rejecting the plea for bail held that there is a prima facie case against the Petitioner although elaborate examination of evidence has not been embarked upon nor were the merits of the case being touched upon, to avoid any prejudice to the petitioner.[Lopsong Lama Yolmo v. State of Sikkim, Bail Appln. No.06 of 2021, decided on 16-04-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Telangana High Court
Case BriefsHigh Courts

Telangana High Court: The Division Bench of A. Rajasheker Reddy and Dr Shameem Akhter, JJ.,  while addressing the matter has shed some light on the distinction between “Public Order” and “Law & Order”.

Petitioner filed the present petition on behalf of his son challenging the detention order passed by the Police Commissioner, respondent 3.

Respondent 3 submitted that detenu is a ‘Sexual Offender’ as defined in clause (V) of Section 2 of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug offenders, Goondas, Immoral Traffic Offenders, Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986 (Act 1 of 1986).

Further, it was submitted that the detenu had committed penetrative aggravated sexual assault on a minor, three times. Subsequently, detention order was passed. Hence the present petition.

Issue for determination:

Whether the detention order passed by respondent 3 and the confirmation order passed by the Principal Secretary to Government, General Administration (Spl. Law and Order) Department, Government of Telangana are liable to be set aside?

Analysis and Decision

[Law & Order v. Public Order]

Supreme Court in several decisions had clearly expressed that there is a vast difference between “law and order” and “public order”.

The offences which are committed against a particular individual fall within the ambit of “law and order”. It is only when the public at large is adversely affected by the criminal activities of a person, is the conduct of a person said to disturb the
“public order”.

Individual cases can be dealt with by the criminal justice system, hence there is no need for detaining authority to invoke the draconian preventive detentions laws against an individual.

Supreme Court in its decision of Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740, had deprecated the invoking of the preventive law in order to tackle a law and order problem.

In Kanu Biswas v. State of West Bengal, (1972) 3 SC 831, following was the Supreme Court’s opinion:

The question whether a man has only committed a breach  of law and order or has acted in a manner likely to cause a  disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. Public order is what the French call ‘order publique’ and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an  act affects law and order or public order, as laid down in  the above case, is: Does it lead to disturbance of the  current of life of the community so as to amount to a disturbance of the public order or does it affect merely an  individual leaving the tranquility of the society undisturbed?”

Further, Court relied on the decision of Vijay Narain Singh v. State of Bihar, (1984) 3 SCC 14,  wherein it was held that a single act or omission cannot be characterised as a habitual act or omission because, the idea of ‘habit’ involves an element of persistence and a tendency to repeat the acts or omissions of the same class or kind, if the acts or omission in question are not of the same kind or even if they are of the same kind when they are committed with a long interval of time between them, they cannot be treated as habitual ones.

Bench observed that in the present atter, the detenu was being prosecuted for committing a heinous offence of penetrative aggravated sexual assault on a girl aged 13 years. He was granted bail by the Court of Session on conditions.

If the State was aggrieved with the bail of detenu, they should have approached the Higher Court to seek cancellation Bail, they instead passed the impugned detention order.

All the cases under POCSO Act are being put on the fast track. It is brought to the notice of this Court that no charge- sheet had been filed.

In Court’s opinion, the bald statement made, wherein it was stated that: considering the detenu’s involvement in heinous activities and his release from prison on bail, there is imminent possibility of his indulging in similar shameful and inhuman acts of sexual assault on minor girls and women exploiting their innocence in a deceptive manner which are detrimental to public order, would not justify the impugned detention order.

Hence, the detaining authority failed to demonstrate the necessity to pass the impugned detention order invoking the draconian preventive detention laws.

Colourable Exercise of Power

Bench noted that due to the acquaintance/friendship, the detenu took the victim girl to a secluded place where he committed sexual intercourse and thus fulfilled his sexual desire and on the next day morning,  he let off the victim girl.

Therefore, it cannot be held that the detenu would indulge in similar prejudicial activities in future. Under these circumstances, the detaining authority is not justified in passing the order of detention, which tantamount to colourable exercise of power.

Was there any disturbance to ‘Public Order’?

High Court in view of the facts and circumstances of the case expressed that grave as the offence may be, it relates to penetrative aggravated sexual assault on a minor girl. So, no inference of disturbance of public order could be drawn.

Therefore, the present case falls under the ambit of “law and order”.

In view of the above discussion, present petition was allowed. [Charakonda Chinna Chennaiah v. State of Telangana, 2021 SCC OnLine TS 261, decided on 23-02-2021]


Advocates who appeared before the Court:

Counsel for the Petitioner: Dr. B. Karthik Navayan

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara J., allowed the petition and reduced the sentence to the period of imprisonment already undergone.

Background

The facts of the case are such that an unmarried boy aged 24 years, who is in custody for around three months, because a minor girl aged 16 years, came to his home as they love each other, stayed there, had coitus, which on the intervention of her parents led to the registration of FIR. The petitioner filed a bail petition under Section 439 Criminal Procedure Code i.e. CrPC before this High Court, wherein the bail petition was dismissed as withdrawn vide order dated 17-12-2020. Assailing the said order instant petition was filed seeking regular bail on the ground of the conduct of the victim.

Analysis

The Court observed that neither Section 376 of the Indian Penal Code, 1860, (IPC), nor Section 6 of the Protection of Children from Sexual Offences Act, 2012, (POCSO) create any restriction on grant of bail. It was further observed that after perusing the facts and circumstances, it seems that the petitioner and the victim knew each other and were romantically involved and there is no case of forcible sexual relationship; instead, the victim surrendered to the petitioner’s physical desires out of her love and affection towards him. The victim’s boldness to declare her passion towards the petitioner in the presence of her father and Police speaks volumes. Further, she also told them explicitly that she left her home out of her own free will and refused to go back with her father. These facts point out that the victim, being 16 years of age, though a minor, voluntarily left her home. Therefore, the rigors to reject bail and reasons to continue incarceration are reduced by the mitigating factors in the present case.

Observations

The Court further observed that adverting to the facts of the present case, the appellant has unintentionally admitted his culpability and the appellant has failed to propound how the elements of kidnapping have not been made out. His core contention appears to be that in view of consensual affair between them, the prosecutrix joined his company voluntarily. Such a plea, in our opinion, cannot be acceded to given the unambiguous language of the statute as the prosecutrix was admittedly below 18 years of age.

The court relied on judgment Satish Kumar Jayanti Lal Dabgar v. State of Gujarat, (2015) 7 SCC 359 and stated that consent of the minor is immaterial for purposes of Section 361 of IPC and provisions in the IPC and other laws like the Indian Contract Act, 1872, minors are deemed incapable of giving lawful consent. Section 361 IPC goes beyond this simple presumption and bestows the ability to make crucial decisions regarding a minor’s physical safety upon his/her guardians. Therefore, a minor girl’s infatuation with her alleged kidnapper cannot by itself be allowed as a defence, for the same would amount to surreptitiously undermining the protective essence of the offence of kidnapping. Similarly, Section 366 of IPC postulates that once the prosecution leads evidence to show that the kidnapping was with the intention/knowledge to compel marriage of the girl or to force/induce her to have illicit intercourse, the enhanced punishment of 10 years as provided thereunder would stand attracted.

The Court further relied on State of Madhya Pradesh v. Surendra Singh, (2015) 1 SCC 222

“13. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.

The Court thus observed that there cannot be any mechanical reduction of sentence unless all relevant factors have been weighed and whereupon the Court finds it to be a case of gross injustice, hardship, or palpably capricious award of an unreasonable sentence. The Court further held that “the quantum of sentence awarded to the appellant deserves to be revisited”.

Grounds for revision

  1. No force, no pre-planning, use of any weapon or any vulgar motive had been present in the act of kidnapping.
  2. The young age of the accused at the time of the incident cannot be overlooked.
  3. trial delay at different levels i.e. more than twenty-two years have passed since the incident.
  4. The present crime was one of passion. No other charges, antecedents, or crimes either before 1998 or since then, have been brought to our notice.
  5. There is no grotesque misuse of power, wealth, status or age which needs to be guarded against.

The Court thus held that “the prosecution has established the appellant’s guilt beyond reasonable doubt and that no case of acquittal under Sections 363 and 366 of the IPC is made out. However, the quantum of sentence is reduced to the period of imprisonment already undergone.”

In view of the above, petition was allowed.[Virender Singh v. State of HP, 2021 SCC OnLine HP 280, decided on 04-02-2021]


Arunima Bose, Editorial Assistant has put this story together.

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., in regard to quashing of FIRs expressed that:

“High Court cannot mechanically quash FIRs for non-compoundable offences by exercising powers under Section 482 CrPC just because parties have decided to bury their hatchets.”

The instant petition was filed for quashing of an FIR for offences under Section 377 of Penal Code, 1860 read with Section 4 of the Protection of Children from Sexual Offences Act (POCSO Act).

Respondent 2/Complainant stated that after completion of his work when he reached home, he saw his 7 year old son crying, who told him that the accused who stayed in the same building had come and sodomosied him.

It was further stated that the underwear of the child was wet with blood. On completion of investigation, there was enough material to proceed against the petitioner for offences under Section 377 IPC and Section 4 POCSO Act.

The reason that has been stated for quashing of the FIR was due to the intervention of the elders of the society and friends. In view of the same, parties decided to put an amicable end to the disputes.

Analysis and Decision

Bench while analysis the facts and circumstances of the case, stressed that Section 377 IPC and Section 4 of the POCSO Act are non- compoundable offences and while exercising powers under Section 482 CrPC to quash criminal proceedings for non-compundable offences on the basis of compromise, the High Court should scan the entire facts to find out the thrust of allegations and the cruxof the settlement.

While stating the above position, Court referred to the decision of Supreme Court in State of Maharashtra v. Vikram Anantrai Doshi, (2014) 15 SCC 29.

Bench also referred to the following decisions of the Supreme Court:

The offence in the instant case was of grave nature.

POCSO Act was enacted only because sexual offences against children were not being adequately addressed by the existing laws and the purpose of the Act was to provide protection to children from sexual assault and sexual harassment and for safeguarding the interest and well being of children.

While noting the above stated objective of the POCSO Act, Bench stated that permitting such offences to be compromised and quashing FIRs would not secure the interest of justice.

Calling out the impact of such offences to be a serious one, Court also stated that, an offence under Section 377 IPC committed on a child of 7 years or an offence under Section 4 of the POCSO Act shows the mental depravity of the offender and cannot be said to be private in nature.

Hence, Court opined that the father of the victim cannot be permitted to settle the dispute and the Bench cannot lose sight of the fact that the accused was being prosecuted for an offence that shocks the value system of a society.

Deterrence to others committing similar offence is a must and they cannot get a signal that anything and everything can be compromised.

Therefore, Bench dismissed the petition in view of the above discussion. [Sunil Raikwar v. State, 2021 SCC OnLine Del 258,  decided on 29-01-2021]


Advocates for the parties:

Petitioner: Amit Gupta, Advocate

Respondents: Kusum Dhalla, APP for the State and Rahul Raheja, Advocate for R-2

Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J., while addressing a matter revolving around the POCSO Act expressed that:

“What came to be a law to protect and render justice to victims and survivors of child abuse, can, become a tool in the hands of certain sections of the society to abuse the process of law.”

 The scheme of the POCSO Act clearly shows that it did not intend to bring within its scope or ambit, cases of nature where adolescents or teenagers involved in romantic relationships are concerned.

The present petition was filed jointly by the Defacto Complainant and Victim Girl with regard to quashing of the proceedings pending against the 2nd Respondent who was facing trial before the lower Court for offences under Section 366 of Penal Code, 1860, Section 6 of the Prevention of Child from Sexual Offences Act, 2012 and Section 9 of the Prohibition of the Child Marriage Act, 2006.

It was stated that 2nd petitioner, victim girl were in love with each other. Ultimately, they decided to get married and went away from their respective home.

Inspector of Police, Doulagh Nisha at the time of hearing informed the Court that the petitioners approached her and informed that they do not want to continue further with the criminal proceedings against 2nd respondent. Further, it was informed to her that 1st petitioner wants her daughter to get married and that the same was getting delayed due to the criminal proceedings causing mental agony to the petitioners.

Analysis and Decision

While addressing the present matter, Court was instantaneously reminded of an earlier order passed by this Court in Sabari v. Inspector of Police, 2019 (3) MLJ Crl 110, wherein the Bench had discussed in detail about the cases in which persons of the age group of 16 to 18 years were involved in love affairs and how in some cases ultimately end up in a criminal case booked for an offence under the POCSO Act.

Bench stated that it is imperative for this Court to draw the thin line that demarcates the nature of acts that should not be made to fall within the scope of the Act, for such is the severity of the sentences provided under the Act, justifiably so, that if the acted upon hastily or irresponsibly, it could lead to irreparable damage to the reputation and livelihood of youth whose actions would have been only innocuous.

Further, the Court stated that as rightly recognized in the above-cited case of Sabari v. Inspector of Police, 2019 (3) MLJ Crl 110,

“incidences, where teenagers and young adults fall victim to offences under the POCSO Act being slapped against them without understanding the implication of the severity of the enactment, is an issue that brings much concern to the conscience of this Court.”

 POCSO Act was brought into force to protect children from offences of sexual assault, sexual harassment and pornography, pursuant to Article 15 of the Constitution of India and the Convention on the Rights of the Child.

A large array of cases filed under the POCSO Act seems to be those arising on the basis of complaints registered by the families of adolescents and teenagers who are involved in romantic relationships with each other.

Court expressed that it is not turning a blind eye to cases where the victim or survivor may, under the effect of trauma that they have undergone, studies on which show that they might tend to reconcile with the same by blaming themselves or convincing themselves that the element of consent was infact present. Nor is this Court scientifically justifying in toto, the genuineness or predicament of the accused in every case where it appears that the accused and victim child have been in a romantic relationship. That will depend on the facts and circumstances of each and every case.

In the instant matter, Bench noted that the 2nd petitioner clearly stated that she was the one who insisted that 2nd Respondent take her away from her home and marry her, due to the pressure exerted by her parents.

In light of the above-said incidents, parents or family lodge a complaint, the police registers FIRs for offences of kidnapping and various offences under the POCSO Act. Several cases under the POCSO Act fall under this category. As a consequence of such an FIR being registered, invariably the boy gets arrested and thereafter, his youthful life comes to a grinding halt.

Hence, due to the stringent nature of the POCSO Act, the acts of the boy would be called as an offence.

The objective of the POCSO Act was never punishing an adolescent boy as an offender who enters into a relationship with a minor girl.

An adolescent boy and girl who are in the grips of their hormones and biological changes and whose decision-making ability is yet to fully develop, should essentially receive the support and guidance of their parents and the society at large. These incidents should never be perceived from an adult’s point of view and such an understanding will in fact lead to lack of empathy.

Therefore, it is high time that the legislature takes into consideration cases of the present nature involving adolescents involved in relationships and swiftly bring in necessary amendments under the Act.

Court in view of the above opined that the legislature has to keep pace with the changing societal needs and bring about necessary changes in law and more particularly in a stringent law such as the POCSO Act.

Main Issue to be addressed:

Whether this Court can quash the criminal proceedings involving non-compoundable offences pending against the second respondent?

Bench relied on the Supreme Court decision in Parbathbhai Aahir v. State of Gujrath, (2017) 9 SCC 641 and in State of Madhya Pradesh v. Dhruv Gurjar (2019) 2 MLJ Crl 10, wherein sufficient guidelines have been given that must be taken into consideration by this Court while exercising its jurisdiction under Section 482 CrPC to quash non-compoundable offences.

Supreme Court held that offences against the society with overriding public interest even if it gets settled between the parties cannot be quashed by this Court.

After examining the above, Court noted that the offences in question in regard to the present matter are purely individual in nature. Hence, Quashing the proceedings, will not affect any overriding public interest in this case and it will in fact pave way for the 2nd Petitioner and the 2nd Respondent to settle down in their life and look for better future prospects.

High Court quashed the criminal proceedings. [Vijayalakshmi v. State, 2021 SCC OnLine Mad 317, decided on 27-01-2021]