Case BriefsHigh Courts

Orissa High Court: S.K. Panigrahi, J. rejected the appeal under Section 14-A of the SC/ST (Protection Against Atrocities) Act and laid down the guiding principles for determination of age in a claim of juvenility.

The facts of the case are that a minor girl was raped by the appellant on multiple occasions on the pretext of marrying her and impregnated her after which he gave her certain pills to abort the child. When the girl and his family confronted the appellant he fled after which they filed an FIR against him. The appellant is presently charged under Section 376(2)(n)/313/506 of Indian Penal Code, 1860 read with Section-6 of POCSO Act read with Section-3(2)(v)(va) of SC/ST (Prevention of Atrocities) Act. The case has come before this court for the determination of age of the victim during the case was registered.

The counsel for the appellant Satyabrata Pradhan, Adhiraj Mohanty, S.S. Dash, M.R. Muduli, M.B. Smrutiranjan, A.K. Samal submitted that the girl was not a minor during the offence was committed and subsequently when the case was registered by relying on her Aadhar card and Aanganwadi register report which are prepared by public servants in the course of their official duty making them cogent and reliable proof of the age of the victim. He also submitted that the girl and the appellant had a love affair and due to which the girl on her own consent when she was a major made relations with the accused and hence the appellant is innocent.

The counsel of the State P.K. Mohanty submitted that the date of birth of the victim as per the school admission register and also the Board Certificate seized by the police both the date of birth coincides to be below 18 years at the time of occurrence giving rise to the complaint. He further contended that Rule-12(3) of Juvenile Justice Rule, 2007 as well as Section 94 and Sub-section 2(i) of the Juvenile Justice Act, 2015 provide the procedure to be followed for determination of age.

The Court relied on the Judgment titled Mukarrab v. State of U.P., (2017) 2 SCC 210 and held that court is inclined to go by the school admission register/ matriculation certificate not only due to leaning of the Apex Court on this issue but also due to the fact that same now raises a presumption in law, albeit rebuttable, by way of a deeming fiction in terms of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

In view of the above, issue of minority was found irrelevant and appeal rejected. [Debabrata Sahoo v. State of Odisha, 2020 SCC OnLine Ori 545 , decided on 30-07-2020]

Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J., rejected the bail application in view of the offence of gang rape against the applicant.

Applicant was punishable for offences under Section 376 of Penal Code, 1860 and Sections 3, 4, 5(G), 5(J)(II), 6, 8 and 12 of the Protection of Children from Sexual Offences Act, 2012.

Applicant’s Counsel Subhash with Samarth Karmarkar, Supriyanka Maurya, Yashpal Purohit submitted that the applicant had been roped into the charge under Section 376(d) IPC without any rhyme and reason.

DNA Report of the child born out of the alleged act of sexual assault did not trace the applicant as the father of the baby girl.

Hence the case for grant of bail was made out according to the applicant.

According to the prosecutrix, she was made to visit the applicant by her friends and then taken to applicant’s house.

Later, prosecutrix was left alone in the company of applicant, thereafter the applicant and his two friends in a pre-planned manner arrived in his house with some drinking and eating stuff. Prosecutrix on consuming some drink felt dizzy and went off to sleep.

Applicant asked the prosecutrix to rest in bed-room, after which she was raped by applicant and his two friends.

On fearing the outcome of the act, prosecutrix did not reveal the incident or the fact that she was pregnant, to her mother. Prosecutrix was below 18 yrs of age at the time when the incident took place. She delivered a baby girl which has been forwarded to an orphanage and is leading her life there.

Bench took into consideration the fact that the charge against the applicant is serious one of committing gang rape and taking advantage o a situation of a poor helpless victim girl. He has indulged with two other people into an act of rape.

“Mere fact that the DNA report do not support the paternity is not ground to release the applicant at this stage.”

Court notes that fact that the applicant might pressurize the victim girl on being released, hence no case for his release on bail is made out. [Vaibhav Bhanudas Ubale v. State of Maharashtra, LD VC Dist Bail Application No. 34 of 2020, decided on 24-07-2020]

Case BriefsHigh Courts

Kerala High Court: P. V. Kunhikrishnan, J., addressed a matter wherein a mother uploaded a video on social media wherein she was getting painted by her two minor children and the purpose to do so was to teach sex education to them. In the said matter, Court made the observation that,

“If the mother would have done the same act without uploading the video on social media, it would have been still understood and not considered an offence, which is not the case now.”

Petitioner a mother of two minor children asked them to paint her naked body above the navel. The video was recorded of the said act and uploaded on social media with the heading — “Body Art and Politics”.

Child Pornography

Cyber dome, Kochi City Police on discovering the said video submitted the report before the Inspector General of Police and Commissioner of Police, Kochi stating the said to be “Chid Pornography related crime” on social media.

The said offence was registered under Section 13, 14 an 15 of the Protection of Children from Sexual Offences Act, 2012 and under Section 67 B(d) of the Information Technology Act, 2000 alongwith the allegation of Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Battle against body discrimination

Petitioner’s submission is that she is an Activist and has been fighting her battle against body discrimination. The petitioner submitted that, it is her firm belief that, there needs to be openness so far as the discussion on body and body parts is concerned, and there is nothing to be hidden within and outside the family about the same. According to the petitioner, the children should be given sex education, and they also need to be made aware of the body and body parts as well. In which event, they would mature themselves to view the body and body parts as a different medium altogether rather than seen it as a sexual tool alone.

Petitioner added that,

“…morality of the society and public outcry cannot be a reason and logic for instituting a crime and prosecuting a person.”

A write up was also added with the said video, according to which the intention of the petitioner was clear and hence in view of the same no offence could be made out against the petitioner.

A small snapshot of the written text by the petitioner:

“In a moral fascist society that look towards the female body as mere illusions. Exposing the views which the society seek to conceal is also a political Act. In today’s society where a female is restricted or Censored from opening her mouth or utter a word with regards to Nudity or Sexuality, brave political act against it is what time demands. When Compare to Male body, Feminine body and her Nakedness has been considered as a mere 55kg of Flesh is just because of the wrong Sexual Education put forward by our society. Society has Customized the Mindset of people in such a way that while looking at a woman who wear a legging make you Sexual arousal whereas the man Stands Macho with his Chest-Hair Exposed as well as showing naked legs by folding the dhoti he wears as a statuesque, doesn’t Connect to Sexual Arousal is just because of the wrong sexual consciousness that is currently being injected by the society. Just as beauty is in the eye of the beholder, so is obscenity in the eyes of the beholder.”

Petitioner’s counsel relied on the judgments of the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881) and in Samaresh Bose v. Amal Mitra [(1985)4 SCC 289] to contend that, there is no indecency or obscenity even if the entire allegations against the petitioner are accepted.

Decision of the Bench

Court stated that according to the petitioner she was teaching sex education to her children by uploading the video. It added that if the mother was doing these activities inside the four walls of her house the situation could have been understood, as it is the freedom of every mother to teach sex education according to her will if it is not forbidden by law.

“Whether such a video can be uploaded in social media and the petitioner can escape by saying that she was trying to teach sex education to all children is the question to be decided.”

“Whether any offence is attracted in such cases, is the question.”

In accordance to Section 13 of the POCSO Act, whoever uses a child in any form of media for the purpose of sexual gratification, it is punishable under Section 14 of the Act.

Main ingredient of the above Section:

“…the child should be used in any form of medium for the purpose of sexual gratification.”

Prima facie, Court was of the opinion that the petitioner used the children for the purpose of sexual gratification because the children are represented in the video uploaded in an indecent and obscene manner because they were seen painting the naked body of their mother.

Court on watching the video states that the expression of the mother when both the children painted her breast was also important — Whether that amounts to the use of the children for the purpose of sexual gratification can be finally decided only after a custodial interrogation of the petitioner.

Bench further adds that, the Explanation to Section 13 clearly states that the expression of ‘use a child’ shall include involving the child through a medium like print, electronic, computer, or any other technology for preparation, production, offering, transmitting, publishing, facilitation and distribution of pornographic material.

In view of the above Court stated that it is not a position to say that no offence under Sections 13,14 and 15 of the POCSO Act is attracted.

Section 67B(d) of Information Technology Act, 2000

Section 67B(d) of the Information Technology Act says that whoever facilitates abusing children online shall be punished. Petitioner asked her children to paint on her naked body. Thereafter, the petitioner uploaded the video in social media, hence in view of the said, in Court’s opinion, prima facie it cannot be ruled out that no offence under Section 67B(d) of Information Technology Act, 2000 is made out.

Investigating Officer shall investigate upon such matters as stated above.

Bench in view of the above stated that,

After watching the picture painted by the children, I have no hesitation to appreciate the talents of the children. They deserve encouragement. But not in the way the petitioner encouraged them by uploading this video.

Bench on applying its judicial mind stated that it is not in a position to say that there was no obscenity in the video and added that the said observation was only for the purpose of present bail application.

While parting with the present order, Court added to its conclusion that,

The children are not born with a moral compass and it is the job of parents, especially of the mother, to build that compass for them. Be responsible enough to teach and demonstrate the values that your kids need in order to grow up as decent human beings.

“…in the initial years, what the child learns from their mother will always have a lasting impression on their mind. It is usually said that, the mother will be the window of the child to the world.”

The petitioner feels that, she should teach sex education to her children. For that purpose, she asks her children to paint on her naked body and then uploading the same in social media. I am not in a position to agree with the petitioner that she should teach sex education to her children in this manner.

In view of the above Court dismissed the bail application of the petitioner. [Fathima A.S. v. State of Kerala, 2020 SCC OnLine Ker 2827, decided on 24-07-2020]

Case BriefsHigh Courts

Kerala High Court: P.B. Suresh Kumar, J.,  overturned the conviction of a rape accused by giving him benefit of doubt.

Case of the Prosecution

In the year 2012, accused committed rape on minor girl aged 15 years and thereby committed the offence punishable under Section 376 of Penal Code, 1860 and Section 5(1) read with Section 6 of Protection of Children from Sexual Offences Act, 2012.

On an examination of the materials on record, the Court below found that the prosecution has not made out a case against the accused under Section 5(l) read with Section 6 of the POCSO Act.

The Court however found that the accused is guilty of the offence punishable under Section 376(2)(f) of the IPC and sentenced the accused.

Accused filed the present petition as he was aggrieved by the sentence and conviction.

Decision

Whether prosecution has established the guilt of the accused under Section 376(2)(f) of IPC?

overt acts attributed against the accused being overt acts allegedly took place prior to Act 13 of 2013, the point to be considered is as to whether the prosecution has established the guilt of the accused under Section 376(2)(f) of the IPC as it stood prior to Act 13 of 2013.

Prosecution failed to establish the age of the victim girl.

Further the Court observed that the medical examination of the victim girl was done after about 5 years.

The mother of the victim girl who was examined as PW3 turned hostile. In a case of this nature, the fact that the mother of the victim girl herself has not given evidence against the accused in support of the prosecution case throws serious doubts as regards the genuineness of the case.

Bench also noted that the version of the victim girl as regards the overt acts attributed against the accused while she was taken to the doctor for medical examination was that the said incidents took place while she was studying in the 6th standard, whereas, as revealed from the extracted portion of the evidence, what was stated by her before the Court was that the said overt acts have been committed by the accused while she was studying in the 5th standard.

Hence, in view of the inconsistent versions with regard to the overt acts alleged against the accused along with absence of any specific evidence, Court did not found it safe to convict the accused.

“…it was found that the prosecution has not proved the age of the victim girl, even if it is admitted that the accused had sexual intercourse with the victim girl, there is absolutely nothing on record to infer that the alleged sexual acts attributed have been committed against the will of the victim girl or without her consent.”

Court also noted that, the overt acts alleged against the accused took place during 2010, whereas the charge in the case is that the accused committed rape on the victim girl during 2012.

Therefore, accused is entitled to the benefit of doubt and criminal appeal is allowed. [Shaik Shiyavulla v. State of Kerala, 2020 SCC OnLine Ker 2631 , decided on 09-07-2020]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Narula, J., while addressing a matter wherein a child aged 9 years old was sexually assaulted, held that,

Pulling down the leggings of the child victim and touching of the thighs is evident of sexual intent and accordingly constitutes an offence of sexual assault.

Appellant impugns Judgment on conviction and order on sentence whereby appellant had been convicted of an offence under Section 10 of the POCSO Act, 2012.

Case of the prosecution

Victim girl who was 9 years old at the time of incident informed that the when the mother was away to her job, appellant came inside the house and removed her leggings and stated feeling/rubbing his hand on her thighs. The victim became frightened, tried to run out of the house but the appellant pulled her inside the house.

Somehow, the victim managed to free herself and went to the house of one Auntie in the neighbourhood.

Later, she informed her mother and thereafter the police was called.

Further, FIR was registered based on the above complaint.

As per the prosecution, the child victim, her brother and mother of the victim remained consistent in their respective statements given to the police as also in their testimonies before the trial court.

Section 29 of POCSO Act raises a statutory presumption against the accused.

Accused has not been able to dispel the presumption or discharge the onus. It is established from the testimony of the child victim and her brother that the appellant/accused had pulled down the leggings of the child and touched her thighs. Pulling down the leggings of the child victim and touching of the thighs is evident of sexual intent and accordingly constitutes an offence of sexual assault in terms of Section 7 of POCSO Act.

In terms of Section 9 (m) of POCSO Act since sexual assault was committed on a child below the age of 12, it would amount to aggravated sexual assault punishable under Section 10 of POCSO Act.

Bench stated that trial court passed a well reasoned order. No infirmity was found in the trail court’s order.

Thus, the appeal was dismissed. [Rajendra v. State, 2020 SCC OnLine Del 724 , decided on 03-07-2020]

Case BriefsHigh Courts

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

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

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

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

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

Bench observed that,

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

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

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

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

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

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

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

Case BriefsHigh Courts

Karnataka High Court: P. Bajanthri, J., asked the authorities concerned to place on record in the next hearing “whether the directions issued by Supreme Court with regard to identity revelation of minor rape victim were violated or not?”

Petitioner stated to that the name and identity of the minor  rape victim was revealed along with the documents in which the identity has been revealed, various other authorities have also disclosed the same.

Supreme Court in the case of Nipun Saxena v. Union of India, (2019) 13 SCC 715 had decided that, in order to protect privacy of a victim/minor girl/woman name/s of victim/minor girl/woman and other particulars shall not be disclosed in any of the documents.

While interpreting Section 228-A Penal Code, 1860 and Sections 23, 24 and 33 of POCSO Act, 2012, certain directions were issued.

Therefore, official respondents have been directed to carry out the directions of Supreme Court.

The issue involved in the present matter related to termination of pregnancy, wherein victim is stated to have suffered rape and being a minor her mother filed the present petition.

Thus, Respondent 1 is directed to constitute medical board for the purpose of medical examination of the victim,

“Whether termination of pregnancy would cause any harm to both victim and foetus”.

Respondent 4 is directed to pay sum of Rs 25,000 to the victim as interim compensation.

Due to COVID-19 respondent 3 is directed to issue appropriate pass in order to reach the hospital and respondent 1 to provide ambulance or taxi facility.

If necessary steps have already taken in this regard, the same shall be placed on record on the next date of hearing so as to verify, “Whether any of the authorities have violated Supreme Court direction read with State directions to the authorities or not”.

Matter to be listed on 19-05-2020. [Minor ‘A’ v. Karwar District Hospital, 2020 SCC OnLine Kar 484 , decided on 12-05-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., allowed a bail application filed for grant of regular bail in connection with the offences punishable under Sections 363, 366-A and 376(2)(N) of the Penal Code, 1860 and Section 5(L)/6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. 

An FIR by the father of the victim mentioned that the applicant/accused had kidnapped her daughter. The Counsel for the applicant, Vikas Anand submitted that the applicant was an innocent person; he had no criminal history and during the trial, the prosecution’s case had not been supported by the victim herself and father of the victim.

The Court while allowing the bail relied on the decision of the Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 which stated that the personal liberty is very precious fundamental right and it should be curtailed only when it becomes imperative according to the facts and circumstances of the case. [Ajay Sarkar v. State of Uttarakhand, First Bail Application No. 2276 of 2019, decided on 04-03-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., allowed a bail application filed for grant of regular bail in connection for the offences punishable under Section 376(2)(i)(n) of the Penal Code and Section 5(1)/6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The FIR was lodged by the father of the victim on 26-09-2018 with the allegations that his daughter told him about the mental and physical harassment given by the applicant/accused since 2014. The victim had mentioned about applicant had taken few photographs for which he was blackmailing and harassing her along with abusing her on the phone and forcing him to make physical relations with him. The counsel for the applicant, Vinod Sharma submitted that applicant was an innocent person; no date or month of the physical relations had been mentioned in the FIR; according to the medical report dated 27-09-2018, no sexual intercourse had been committed with the victim in last few days; no said photographs were produced by the prosecution; no rape or sexual intercourse had ever been committed by the applicant on the prosecutrix; in medical report dated 27.-09-2018, no sign of rape had been found and there was no swelling, no injury, no bleeding; the applicant has no criminal history; he was in custody since 27-09-2018; prosecution had not filed so far any reliable certificate of date of birth of the victim.

The Court while allowing the bail relied on the judgment of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 where the Supreme Court had observed that the personal liberty was a very precious fundamental right and it should be curtailed only when it becomes imperative according to the facts and circumstances of the case and in the present case the attendance of the accused could be secured without having him to be put in custody. [Amit v. State of Uttarakhand, 2020 SCC OnLine Utt 121, decided on 03-03-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara, J., allowed a bail petition of an accused who was under arrest due to an FIR registered under Sections 452 and 376 of the Penal Code, 1860 and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘the POCSO Act’).

The FIR stated that the mother of the victim mentioned that she stayed in her matrimonial home with two of her children, a son aged 13 years and a daughter aged 14 years and her daughter was deaf from childhood and couldn’t even walk on her own. On 8-10-2019 at 7:30 p.m., she was going to attend the wedding in the village when she noticed the accused petitioner standing near the door of her house, on which she asked him the purpose to which he left the place. Later, she locked the house after placing her daughter inside and left to attend the wedding. When she returned at around 10.30 p.m. she found the locks to be broken and the blanket on her daughter removed along with bloodstains on her salwar. She suspected the accused petitioner and requested a medical examination after which he was arrested on filing the FIR. The doctor who had conducted the medical examination had said that there was no sign of any physical violence over the body and also mentioned that she was not menstruating and there was no external injury however the possibility of sexual intercourse could not be ruled out. The report from Forensic Science Laboratory did not deduct semen on clothes of the victim, vaginal swab and quilt cover.

On the other hand, the petitioner had specifically mentioned that the mother of the victim had been purchasing daily needs and ration items from him, on credit but despite requests, she did not pay and that he was not involved with the alleged offence. The petitioner had filed a petition under Section 439 Criminal Procedure Code, before Special Judge but it was dismissed thus the instant petition arose.

High Court while allowing the petition explained that the doctor did not find even a single trace of sexual assault nor the Laboratory deducted any semen from the vaginal swab and the mother’s allegation is also based on mere suspicion thus the petitioner is entitled to receive bail. [Bhup Singh v. State of H.P., 2020 SCC OnLine HP 147, decided on 24-01-2020]

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of Bela M. Trivedi and A.C. Rao, JJ., dismissed an appeal filed on being aggrieved by the Judgment and order by the Additional Sessions Judge and Special Judge (POCSO), whereby it had convicted the appellant-accused for the offence under Sections 302, 363, 366, 376AB, 377 and 201 of the Penal Code, 1860 and under Sections 3(a), 4, 5(a), 5(r) and 6 of the Protection of Children from Sexual Offences Act, 2012, and had sentenced him to death penalty for the offence under Sections 302, 376AB of the Penal Code and had convicted him of the offences under the Atrocities Act.

The facts of the case stated as per the prosecution before the Special Court were that the appellant-accused was residing on the ground floor of the house owned by Shyam Narayan Pandey and the complainant along with his family had been residing in the same building on the first floor as a tenant and the appellant on 14-10-2018 between 8-8.30 pm kidnapped his minor daughter aged about 3 years and 6 months (victim) took her to his room committed rape on her and killed her by throttling. Thereafter in order to destroy the evidence put the body of the victim in a gunny bag in his room and locked the room from outside and fled away. After the complainant filed the missing report in the police station the investigation officer conducted an inquiry and since the room of the accused was locked the lock was broken and the body of the victim was found in a decomposed state. After collection of sufficient evidence against the accused the charge-sheet was filed before the Special Court. After appreciating the evidence on record, it convicted and sentenced the accused as per the impugned judgment and order which is challenged in the instant petition.

The counsel for the appellant-accused Radhesh Vyas stated that the whole case of the prosecution was rested on the circumstantial evidence, the confession made by the before medical examiner as well as when in police custody could not be relied upon and read as evidence, the CCTV footages provided did not cover the entire area of the society and couldn’t be termed as reliable piece of evidence, relying upon the cross-examination which submitted that there was a shutter in the room of the accused and possibility that the gunny bag could be placed through that shutter cannot be ruled out. Lastly relying on the Supreme Court judgment of Bachan Singh v. State of Punjab, (1980) 2 SCC 684 and Machhi Singh. v. State of Punjab, (1983) 3 SCC 470 he submitted that the Special Court had committed a gross error in not considering the mitigating circumstances before awarding capital punishment and relying on various other cases he tried to establish that the instant case did not fall in the category of the rarest of the rare case.

The counsel for the respondents Himanshu Patel, stated that even if the case was based on circumstantial evidence the prosecution had proved each and every circumstance without reasonable doubt proving guilt of the accused and wile at the time of the investigation he did not cooperate with it and had fled to his village the next morning of the incident and the investigation officer had found the body of the victim from his room, the postmortem reports clearly described that the victim was raped in a diabolical manner and brutally murdered by strangulation and then her dead body was kept in a gunny bag to decay and decompose. Late the accused was arrested from Bihar in a train going to Delhi. The DNA profile and other scientific investigations also proved that the accused was involved with the crime. The Court, therefore, had no hesitation in holding that trustworthy and credible evidence given by the prosecution had conclusively proved the guilt of the appellant/accused, excluding any possibility of his innocence.

The Court while dismissing the appeal and confirming the decision of the Special Court stated that the abhorrent and atrocious nature of crime committed by the appellant-accused in a diabolical manner, on the defenseless unprotected girl of 3½ years, without any remorse, has left the Court with no option but to consider the case as the “rarest of rare case” for awarding the punishment of death penalty. [Anil Surendrasingh Yadav v. State of Gujarat, 2019 SCC OnLine Guj 2692, decided on 27-12-2019]

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: A Division Bench of Manmohan and Sangita Dhingra Sehgal, JJ. dismissed a criminal leave petition filed by the State challenging the order of the Additional Sessions Judge whereby the respondent-accused was acquitted of offences punishable under Sections 376, 366 and 363 IPC along with Section 6 of the Protection of Children from Sexual Offences Act, 2012.

The father of the victim had lodged a complaint that his minor daughter (aged about 17 years) had not returned home from school. During the course of the investigation, the victim was recovered from the possession of the accused. After completion of investigation, charge sheet wassailed against the accused of the offences as aforementioned. The accused was, however, acquitted by the trial court.

Aashaa Tiwari, APP appearing for the State, submitted that as the victim was a minor at the relevant time, her consent to accompany the accused and to have physical relations with him was of no consequence.

Perusing the statements of the victim, the High Court noted that she has misrepresented her age to be 18 years to the accused. She had also categorically stated that had she not done so, the accused would not have allowed her to accompany him.

It was observed: “The element of mens rea, which is an essential ingredient of Sections 363, 376 IPC is missing. In the present case, it is only because of a misrepresentation by the prosecutrix with regard to her age, which the respondent-accused bonafidely believed to be true that he allowed her to accompany him.”

The Court noted further: “In fact, statement of the prosecutrix clearly negates any charge including Section 6 of POCSO. Consequently, as the respondent-accused had not knowingly committed any offence, none of the charges can be said to have been proven.”

Considering the well-settled law that an acquittal order cannot be lightly interfered with by the Appellate Court, the High Court declined to interfere with the order of the acquittal passed by the trial court. The leave petition was thus dismissed.[State (NCT of Delhi) v. Kaishar Ali, 2019 SCC OnLine Del 9875, decided on 30-08-2019]

Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J. while addressing a petition expressed disappointment in respect to the manner in which POCSO Act is being misused, as, in the present case, the wife went down to the extent where she has put up false allegation of sexual assault against her husband with their daughter who is aged 11 years old only with the motive to get custody of her daughters.

“One of those unfortunate cases, where the wife has resorted to giving a complaint against her husband alleging that he has committed sexual assault against their daughter.”

In the present case, the 2nd respondent gave a complaint to the respondent police stating that there is an illicit relationship between the petitioner – father of their daughter. She adds that, she was able to identify and see some bodily changes in her elder daughter and also she had become pregnant. Her pregnancy was terminated through native medicines.

Respondent police had registered an FIR for an offence under Section 6 of the Protection of Child from Sexual Offences Act, 2012.

Petitioner apprehended arrest and approached this Court by filing the Anticipatory Bail Petition. Court summoned the minor girl in order to enquire her in person. She completely denied the allegations made against the petitioner.

Observations made by the Court:

Court categorically found that the de facto complainant lodged a false complaint with an ulterior motive to threaten petitioner and thereby petitioner was granted anticipatory bail.

Present petition is aimed to quash the FIR which is itself an abuse of process of law and is being used to threaten the petitioner to wreck vengeance against the petitioner.

Court on summoning the victim girl noted that, she had narrated the entire incident clearly where it can be seen that the defacto complainant was attempting to take the daughters into her custody and for that purpose, she cooked up a false story against the petitioner. It was also added to the Court’s observation that, the victim girl had taken a very consistent stand both at the time of giving a statement under Section 164 CrPC and at the time when she was personally enquired by this Court.

This case has shocked the conscience of the Court and it is unbelievable that the mother just for the sake of taking custody of her child, can go to the extent of making such serious allegations against her husband.

Court while analysing the seriousness of the false allegation also stated that it is an eye-opener for the Court as now the Court is aware of the extent with which POCSO Act can be misused.

“2nd Respondent without caring for the future of her own daughter, proceeded to give a complaint alleging illicit relationship between her husband and daughter”—This is the worst type of false prosecution a Court can ever encounter.

Therefore, respondent police is directed to immediately proceed against 2nd respondent under Section 22 of the POCSO Act for having given a false complaint and accordingly action to be taken in accordance with the law.

This case should be a lesson for all those who attempt to misuse the provisions of this Act, just to satisfy their own selfish ends.

Thus Criminal Original Petition is accordingly allowed. [N. Chandramohan v. State, 2019 SCC OnLine Mad 3666, decided on 20-08-2019]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Abhijit Gangopadhyay and Joymalya Bagchi, JJ. allowed an appeal and set aside the conviction and sentence of a stepfather (hereinafter “appellant”) accused of sexually assaulting his minor daughter.

The appellant had been charged with raping his stepdaughter aged around 13 years twice in duration of 4 weeks. The chargesheet was filed and charges were framed under Section 354 (assault or criminal intent to a woman with intent to outrage her modesty) of the Penal Code, 1860 and under Section 5 and 6 of the Prevention of Children from Sexual Offences Act, 2012. The trial Court convicted the appellant for the offence punishable under Section 5(n) of the POCSO Act and sentenced him to rigorous imprisonment for life and pay a fine of Rs 50,000. Appellant-accused filed an appeal against this order.

The counsels for the appellant  Deep Chaim Kabir and R. Arul Peter argued that the alleged incidents were false as the statements of the victim were highly unreliable and contradictory in nature. The incident of outraging the modesty of the victim was not confirmed by her uncle (prosecution witness) in whose house she allegedly took refuge after the incident. There were a lot of inconsistencies in the statements mentioned by the victim. It was also submitted that seizure of incriminating articles like a used condom and sanitary napkins were from a public place which was accessible to all. No forensic evidence to connect incriminating articles with appellant. 

The learned counsel appearing for the State A.S. Zinu argued that evidence of a minor victim of sexual assault must be treated with due sensitivity and care as the appellant is accused of the heinous crime of rape. Also, he contended that the appellant had fiduciary control over victim and this lead to delay in lodging the FIR. The medical report showed that the victim’s hymen was ruptured which indicated rape. The victim herself pointed out the place where the incident had occurred and incriminating articles were found. Her statements were supported by the testimonies of the witnesses and in view of the statutory presumption under Section 29 of the POCSO Act prosecution’s case was well established.

The Court was of the opinion that the evidence led by the prosecution to establish the primary facts was inconsistent. One part of the prosecution case improbabilities the other part to such an extent that no man of reasonable prudence would accept the version as coming from the witnesses. Hence, the factual matrix of the case did not call for invocation of statutory presumption under POCSO Act to convict the appellant on charges levelled against him. 

In light of the aforesaid discussion, the Court held that conviction and sentence of appellant under Section 5(n) read with Section 6 of Act was liable to be set aside. The appeal was allowed and appellant was directed to be released from custody upon furnishing a bond to the satisfaction of the learned trial court which shall remain in force for a period of six months in terms of Section 437A of the Code of Criminal Procedure, 1973. [Subrata Biswas v. State, 2019 SCC OnLine Cal 1815, decided on 11-06-2019]

Hot Off The PressNews

The National Human Rights Commission, NHRC, India has taken suo motu cognizance of media reports that a 12-year-old Dalit girl in Nuh was allegedly abducted, taken to an under-construction house of a “cop” and gang-raped for two days. The news reports also reveal that the grandmother of the victim had approached the police authorities on 09-07-2019 but no help was provided to her by the police eventually filed a case under the POCSO Act yesterday on 11-07-2019 and nabbed three persons, who reportedly confessed to the crime. Reportedly, the victim lives with her grandmother as her parents are no more. She was away when one of the culprits approached her and took her out.

The Commission has issued a notice to the Director General of Police, Haryana calling for a detailed report in the matter within four weeks. The report should also communicate about the status of the investigation being conducted in the matter and the relief and rehabilitation and counseling provided to the victim girl as the case has been registered under provisions of the POCSO Act and the girl also belongs to Scheduled Caste.

The Commission has observed that the contents of the news report, if true, raise a serious issue of violation of human rights of the poor girl. It is more disheartening, as reported, that for two days when the girl was being assaulted and her grandmother was seeking help from the police authorities, no action was taken on her request. Had the timely action been taken by the police personnel, perhaps, the girl could have been saved from the clutches of the perpetrators in time. As alleged, such an inhuman approach shown by the police personnel is highly condemnable. Apparently, public servants have failed to do their lawful duty.

According to the media reports, the victim was known to one of the accused, who is at large. He took the unsuspecting girl for a drive and called up his accomplices. They took her to an under-construction house belonging to an SPO, so that nobody could venture inside the house. One of the accused has confessed that the victim girl was threatened of killing if she dared to tell anybody, about the incident.


NHRC

[Press Release dt. 12-07-2019]

Case BriefsHigh Courts

Delhi High Court: In view of the failure of justice on account of lack of effective cross-examination of prosecution witnesses, Sanjeev Sachdeva, J. quashed the trial court’s order convicting and sentencing the accused (appellant) for offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012.

The appellant had challenged the order of the trial court whereby he was convicted and sentenced under POCSO Act. He contended that the manner in which the trial was conducted showed that the principles of natural justice were violated and he was declined a fair opportunity of being defended.

The High Court found that some prosecution witnesses were not cross-examined and for others, there was very sketchy cross-examination. It was noted that the manner in which cross-examination was conducted on part of the accused by the amicus curiae appointed by the trial court clearly showed that he made no serious efforts to defend the accused. It was observed: “If the Amicus Curiae does not or is not in a position to effectively provide assistance to an accused, the Trial Court is obliged to correct the situation. Even the trial court failed to take any remedial steps. The manner in which the cross-examination has been conducted has clearly led to failure of justice.” Holding it to be a clear case of failure of justice, the Court quashed the impugned order and remanded the matter to the Court of Additional Sessions Judge for re-trial from the stage of cross-examination of prosecution witnesses.

Before departing with the case, the High Court recorded appreciation for the assistance rendered by Adit S. Pujari, Advocate appearing on behalf of Delhi High Court Legal Services Committee and also by Meenakshi Dahiya, Additional Public Prosecutor for the State. [Dev Kumar Yadav v. State (NCT of Delhi), 2019 SCC OnLine Del 8485, decided on 10-05-2019]

Case BriefsHigh Courts

Sikkim High Court: A Bench of Vijay Kumar Bist, C.J., and Meenakshi Madan Rai, J., dismissed an application filed against the judgment of the Special Judge (POCSO) whereby the appellant was convicted for the offences punishable under various sections of the Protection of Children from Sexual Offences Act, 2012 and the Penal Code for raping a minor girl.

It was alleged that the appellant raped the victim in a jungle near her school when she went there for collecting fruits. The victim was aged 13 years at the time of the incident. The appellant was tried, convicted and sentenced for raping the victim by the trial court. Aggrieved thereby, he preferred the present appeal.

Gulshan Lama, Advocate (Legal Aid Counsel) for the appellant relied on the statement of doctors to challenge the impugned judgment. Per contra, Thimlay Dorjee Bhutia, Additional Public Prosecutor supported the impugned judgment.

The High Court noted that the Forensic Laboratory Report stated that human semen was found on victim’s underwear. Considering the report with statements of the victim and her friend, the Court found the victim’s statement trustworthy.

Explaining the law, the Court observed, “Section 29 of the POCSO Act provides that where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3,5,7 and 9 of the POCSO Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved. In this case, the appellant failed to prove that he has not committed the offence as alleged by the minor victim. Section 30 of the POCSO Act provides that the accused has to establish beyond reasonable doubt that had no culpable mental state.”

Stating that the appellant made no effort to rebut the presumption of culpable mental state, the Court dismissed the appeal. [Lakpa Dorjee Tamang v. State of Sikkim, 2019 SCC OnLine Sikk 7, dated 21-2-2019]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of Sunil Thomas, J. set aside the order of Sessions Judge requiring advance submission of questions to be put to witness in cross-examination holding the same to be improper.

The instant petition was preferred by an accused facing trial for offences punishable under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) alleging lack of fair trial. It was submitted that, after the conclusion of victim’s examination-in-chief, a questionnaire of cross-examination was advanced to the Court, copy whereof was also furnished to the prosecutor and the case was adjourned after ten days. The petitioner contends that this procedure was in total disregard of principles of cross-examination as it would enable the prosecutor to prepare the witness to answer the questions.

The High Court observed that as per Section 33 (2) of the POCSO Act, counsel appearing for the accused, while recording the examination-in-chief, cross-examination or re-examination of the child, is obliged to communicate the questions to be put to the child to the Special Court, which shall, in turn, put those questions to the child. 

While the Act does insulate a victim against aggressive cross-examination, the court has to ensure that the relevant questions which may be embarrassing to the witness are decently conveyed to him without leaving out the spirit and soul of the said question, to ensure fair trial of the accused.

Section 33 of the Act does not empower the Court to demand a questionnaire from either side in advance before the examination of witness. Such an act would negate the right of the accused to a fair trial since, defeat the very purpose of cross-examination and make it an empty formality.

In view of the above, the petition was allowed with a direction to the court below to permit the counsel for petitioner to continue cross-examination in accordance with law.[Unnikrishnan R v. Sub Inspector of Police,2018 SCC OnLine Ker 4642, decided on 31-10-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Rakesh Kumar Jain, J., refused to grant permission to terminate pregnancy of a 14 year minor girl.

The facts of the case are that the petitioner is a father of a minor girl of 14 years of age who was raped and on that account an FIR was filed against the accused under Section 6 of the POCSO Act, 2012 and Sections 376(3) and 506 of Indian Penal Code. As soon as the pregnancy of the minor came into light, the petitioner approached the Court for termination of 28 weeks pregnancy in accordance with the Medical Termination of Pregnancy Act, 1971 wherein permission of Court is required if the pregnancy is of more than 20 weeks.

Question before Court was whether if pregnancy of the minor is terminated, there would be danger to life of minor or not. Respondent Director, PGIMS Rohtak gave opinion according to which if pregnancy is terminated there could be grave risk to minor’s life. Petitioner even after apprehension of minor’s death pleaded the termination of pregnancy to be carried out. Court after hearing the parties refused to permit termination of pregnancy.

Petitioner asked for directions in light of the case of Shewata v. State of Haryana, 2015 SCC OnLine P&H 20442 wherein termination of pregnancy of a girl was rejected but directions were given by Court for the welfare of the girl. Court, therefore, issued directions to the Director, PGIMS Rohtak for the welfare of the minor. Some of the important directions are given here for reference. Direction to admit minor as an indoor patient with a private room was given. Minor was to be given medicines, food, clothes, and other facility and during delivery, minor should be personally monitored by the Head of the Department of Obstetrics and Gynaecology. Authorities of Medical College were supposed to ensure privacy and non-disclosure of her name to the public. With the above directions, this petition was disposed of. [Sikander v. State of Haryana, CWP No.21291 of 2018, decided on 28-08-2018]