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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]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Anu Malhotra, J. dismissed an appeal for reduction of sentence of the appellant awarded by trial court. The Court also gave directions essential for reformation of the convict (appellant) incarcerated in Tihar Jail.

The appellant was convicted under Section 6 read with Section 5(m) of POCSO Act along with Section 323 IPC. He was sentenced imprisonment for a period of 14 years under all the sections combined. He had undergone a period of 5 years, 4 months and 2 days. The convict filed the present appeal for seeking reduction of sentence. He was convicted for sexual assault on a two and a half years old victim child.

The High Court, considering all the facts, was of the view that no reduction in period of sentence as awarded by the trial court could be granted to the convict. However, following the precedent, the Court held that carcerial period should be such which reforms the convict. Therefore, the Court thought it essential to issue directions for reformation of the appellant-convict who was incarcerated in Tihar Jail. The Court directed the Superintendent at the Tihar Jail to consider an appropriate program for the appellant ensuring:

  • meditational therapy;
  • educational opportunity, vocational training, developmental program to enable livelihood options;
  • post-release rehabilitation program;
  • protection from being associated with anti-social groups as per Model Prison Manuel, 2016;
  • adequate counseling for sensitising him to understand why he is in prison;
  • conducting psychometric tests;
  • contact with family members as per jail rules.

The appeal was disposed of in the terms above. [Randhir v. State (NCT of Delhi),2018 SCC OnLine Del 10906, decided on 28-08-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: A Division Bench comprising of J.K.Maheshwari and Akhil Kumar Srivastava, JJ., addressed the issue of rape and murder of a minor girl to see if capital punishment of death penalty could be imposed upon the accused.

Accused in this case was alleged under Sections 376A, 302, 342, 201/511of IPC. He raped a minor girl aged 12-year old after which the girl died. The court had no doubt as to the commission of rape by the accused as many people witnessed the accused running away from the hut where the girl was found dead. The post-mortem report confirmed rape but the reason for her death was stated to be asphyxia. Trial Court observed that the case was proved beyond reasonable doubt. While sentencing accused, Trial Court took aid under Section 42 of POCSO Act as the victim was a minor girl. Stating instant case as rarest of rare case capital punishment of death was awarded.

The appeal went before High Court where the question of whether it was a “rarest of the rare case” was to be decided. Court referred various judgments of Apex Court to understand “rarest of the rare case” and on perusing the aggravating and mitigating circumstances court was of the view that the instant case would not come under “rarest of the rare case”. Therefore, Court set aside the capital punishment given for the offence under Section 376A of the I.P.C. [Sunil Adiwasi v. State of M.P., Criminal Appeal No.5015 of 2018, dated 17-08-2018]

Case BriefsHigh Courts

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

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

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

Case BriefsHigh Courts

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

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

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

Case BriefsHigh Courts

Calcutta High Court: A Division Bench comprising of Ravi Krishan Kapur and Joymalya Bagchi JJ., issued directions in a case involving commercial sexual exploitation of women and children that are to be followed as a standard operating procedure in the investigation and prosecution of such crimes.

The present case deals with the application for cancellation of bail for the offences under Sections 363/366/370/370 A/373/120 B/34 IPC, r/w Sections 3/4/5/6/7/9 of the Immoral Traffic (Prevention) Act, 1956, Sections 4/6/17 of the POCSO Act and Section 81 of the Juvenile Justice (Care and Protection of Children) Act, 2015. It has been alleged by the petitioner that after the disclosure of the opposite-party being involved in such grave offences with evidence on record, the order of anticipatory bail granted needs to be set aside as the order indeed seems to be given without any application of mind and in absolute mechanical manner.

While noting the facts and circumstances along with the submission of parties, the Court stated that ‘We are pained by the laconic and casual manner in which the learned Judge chose to allow an application for pre-arrest bail in a case relating to the commercial sexual exploitation of underage girls by an organised crime racket’.

Therefore, the High Court giving due weightage to the fact that menace of trafficking of women and minors have been observed in alarming proportions and the lackadaisical manner in which these cases are investigated, the following directions need to be adhered to:

  • FIR registered under I.T (P) Act or under Section 370/372/373 IPC or the provisions of the POCSO Act, needs to be investigated by specialized agency like Anti-Human Trafficking Unit.
  • FIR’s as stated in the above cases must be transferred within 24 hours to the specialized agency.
  • State Government to set up Anti-human Trafficking units in every district manned by police personnel, not below the rank of inspector, preferably women.
  • Section 164 CrPC: Statements of victims recovered under raid or any such circumstance to be recorded under the said Section.
  • Medical Assistance to victims under Section 357 CrPC.
  • Compensation under ‘Victim Compensation Scheme’ to be granted
  • Jurisdictional Magistrates/Special Courts shall seek reports from the investigating agency as well as Secretary, District Legal Services Authority.
  • Trial Court shall provide appropriate protection to the victims and its family members.
  • Depositions to be recorded within a month from the commencement of trial.

The High Court disposed of the application for cancellation of bail in accordance to the issued directions. [State of W.B v. Sangita Sahu, 2018 SCC OnLine Cal 4853, order dated 05-07-2018]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Shivakant Prasad, J. dismissed a criminal appeal filed by the appellant against the order of trial court whereby he was convicted under Section 8 of Protection of Children from Sexual Offences Act, 2012.

As per the prosecution case, the appellant took the victim girl with him on the pretext of giving music tuition. On the way, he dragged her to a bush by the side of the main road and committed sexual assault. He was caught by local people and handed over to the police. In her statement, the victim deposed in unequivocal terms that she was taken to the bush; her face was gagged; underpants were removed, and the appellant pushed a finger into her vagina. Consequently, the trial court convicted the appellant under Section 8. The appellant appealed against the order of trial court contending that the statement of the victim was not reliable, as, in case of pushing a finger into the vagina, there would have been a vaginal injury, and no such fact was brought out by the medical evidence.

The High Court repelled the contention of the appellant. It was observed that the medical evidence does not itself prove the prosecution case, it is only used for corroborating the charge. The victim girl was the first eye-witness who had clearly stated about pushing of a finger into her vagina, but not about penetration. Statement of the victim was in consonance with probabilities and consistent with other witnesses. Pushing of the finger may not cause vaginal injury. Further, the guilt of the appellant was proved as penetration was not necessary, and mere touching of the vagina would constitute sexual assault, sufficient to prove the appellant guilty under Section 8 of the Act. Accordingly, the impugned order of the trial court was upheld and the appeal was dismissed. [Niranjan Pramanik v. State of W.B.,2018 SCC OnLine Cal 4377, decided on 03-07-2018]

Case BriefsHigh Courts

Gauhati High Court: A Single Judge Bench comprising of Hitesh Kumar Sarma, J., convicted the accused-appellant under Section 376(1) of the IPC, and made a correction by removing Section 8 of the POCSO Act as it was discovered by this Court that the victim was a major when the act of rape was committed upon the victim.

The brief facts of the case are that the accused/appellant had committed the offence of rape for which he was convicted by the learned Special Judge under Section 376 of the IPC combined with Section 8 of the POCSO Act. For the stated fact, an FIR was lodged and on receipt of the FIR, a case was registered under Section 376 of the IPC read with Section 8 of the Protection of Children from Sexual Offences Act, 2012. The learned Sessions Judge framed the charges against accused-appellant under Section 376 and 511 of the IPC as well as Section 8 of the POCSO Act.

The fact that the accused-appellant had committed the offence of rape on the victim who was intellectually disabled was allegedly proved from the fact that when he was asked to appear for a village meeting in which on being asked about the incident, he kept mum and therefore he was sent to jail.

However, on perusal of the records, the High Court stated that if any meeting of such manner as mentioned above was even held, the extra-judicial statements that were recorded at the meeting were all without strong corroboration and cannot be relied upon.

Therefore, the Hon’ble High Court on noting the fact that the victim was a major when the incident happened, acquitted the accused of the offence under Section 8 of POCSO Act, and upheld his conviction under Section 376 IPC on finding him guilty on the basis of the testimony of the victim. However, since the incident happened before the enforcement of Criminal (Amendment) Act, 2013, the accused was sentenced under Section 376(1) and his sentence was reduced from 10 years to 7 years. [Lila Duwarah v. State of Assam, 2018 SCC OnLine Gau 551, dated 18-05-2018]

Cabinet DecisionsLegislation Updates

In a major development against the increasing incidents of child rapes in the country, the Union cabinet, on 21-04-2018, cleared the ordinance on POCSO Act. The ordinance will give the death penalty to those convicted of raping a child up to 12 years of age. The Centre has cleared the criminal law amendment ordinance and POCSO Act is a part of this amendment. The demand for the death penalty to child rapists took centre stage after the two separate cases of gangrape and murder emerged from Jammu’s Kathua and Uttar Pradesh’s Unnao. With the incidents of minor rape cases on the rise, the ordinance will be effective in amending the POCSO (Protection of Children from Sexual Offences) Act. As per the current POCSO law, the minimum punishment for “aggravated assault” is 7 years in jail and maximum is a life sentence. The Centre is also inclined towards amending the penal law in order to introduce death penalty to sexual abusers of children up to 12 years of age.

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench comprising of Tarlok Singh Chauhan and Chander Bhusan Barowalia, JJ., decided a criminal writ petition, wherein the minor petitioner was sent to Balika Ashram considering welfare of the minor child.

The petitioner was a minor girl who met one ‘L’ through facebook and they developed mutual feelings for each other. The petitioner expressed to her parents that she wanted to marry ‘L’, but her parents did not agree. However, the petitioner married ‘L’ against wishes of her parents and was living with his family. The parents of the petitioner lodged complaint against ‘L’ under various sections of IPC and the POCSO Act, pursuant to which ‘L’ was arrested. The petitioner was handed over to her parents by the police. However, the petitioner came back and was since then living with parents of ‘L’. Question before the Court in this case was whether it should continue to entrust the custody of the minor child to father of ‘L’?

The Court took notice of the fact that despite being served, father of the petitioner did not appear in the Court. It was observed that in such like cases, the court has to exercise parens-patriae jurisdiction as first and paramount consideration is the welfare of the minor child, especially when natural parents refuse to accept the child. The Court held that though father of ‘L’ kept the petitioner like his own daughter, yet the custody of the petitioner could not be granted to him, as on the date he had virtually no relation with the petitioner. In the given circumstances, the Court was of the considered opinion that sending the petitioner to Balika Ashram till the time she attains majority, would be in her best interest. After that she would be free to go wherever she likes and marry whoever she wants. Directions were made accordingly. [‘K’ v. State of H.P., 2018 SCC OnLine HP 432, order dated 12.4.2018]

Case BriefsHigh Courts

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

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

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

Case BriefsHigh Courts

Bombay High Court: In a petition filed against proceedings pending against the petitioners under the Prevention of Children from Sexual Offences Act, 2012 (POCSO Act), a Single Judge Bench comprising of A.M. Badar J., disposed of the petition, holding that the proceedings could not be quashed.

The petitioners, the mother of the victim and one, Valji Vadher, had been accused of sexually harassing the child (offence defined under Section 11 and punishable under Section 12). Perusing the FIR filed by a police officer and the statement of the victim, the Court held that though Section 11 was not invoked against the mother, there were sufficient grounds to proceed against Petitioner 2 because of the victim’s statement which alleged that the petitioner always looked at her with bad intention.

As per the definition of the offence under POCSO Act, the Court held that “if a person with sexual intent repeatedly or constantly follows or watches or contacts a child either directly or through other means, then he can be said to have committed an offence defined under Section 11 of the POCSO Act. The question whether the act was with sexual intent is a question of fact”. Therefore, the proceedings were not quashed and the petition was disposed of. [Manju Tejbal Vishwakarma v. Union Territory of Daman & Diu, 2017 SCC OnLine Bom 8895, decided on 27.09.2017]